RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00062 

 

 (DECEDENT) COUNSEL: NONE 

 

 (APPLICANT) HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her deceased former husband’s military personnel records be 
corrected to reflect he made a timely election for former spouse 
coverage under the Survivor Benefit Plan (SBP), naming the 
applicant as the former spouse beneficiary. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

Her deceased former husband made the required election for 
former spouse coverage under the SBP when he mailed a signed 
election form to the Defense Finance and Accounting Service 
(DFAS) within one year of their divorce. Yet, after the former 
member’s death, DFAS notified the applicant that she was not the 
SBP beneficiary as the deceased former member had submitted the 
wrong form. While she could have requested coverage herself, 
she was never informed that she was no longer the elected 
recipient. Also, for years after the divorce, the former member 
continued to confirm the applicant was the SBP beneficiary as 
evidenced by her date of birth being continually reflected as 
the date of birth of the SBP beneficiary on his retired pay 
statements. DFAS should have notified her that there had been a 
change of beneficiary. By neglecting to do so or by neglecting 
to send her a copy of the correct form, DFAS failed to give her 
the opportunity, which was due her, to request coverage as the 
former spouse beneficiary. 

 

In support of her request, the applicant provides an expanded 
statement and copies of DFAS correspondence pertaining to the 
matter under review, her DD Form 2618, Survivor Benefit Plan 
(SBP) Open Enrollment Election, certified mail return receipts, 
and divorce decree, as well as the deceased former member’s 
retirement orders, DD Form 214, Report of Separation from Active 
Duty, and Death Certificate. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

________________________________________________________________ 


STATEMENT OF FACTS: 

 

The deceased former member retired from active duty on 1 Oct 77. 
He elected spouse coverage for his first spouse under the SBP 
prior to his retirement. The parties subsequently divorced and 
the deceased former member was remarried to the applicant on 
2 Feb 82. Spouse SBP coverage was established for the applicant 
on 1 Mar 83. The parties divorced on 21 Nov 92. On 2 Jun 93, 
the deceased former member was remarried. On 4 Apr 10, the 
deceased former member passed away. 

 

On 12 Sep 11, copies of HQ USAF/JAA and SAF/GC advisory opinions 
pertaining to the issue of competing spouse SBP beneficiaries 
were forwarded to the applicant for review and comment within 
30 days. As of this date, no response has been received by this 
office (Exhibit H). 

 

On 9 Dec 11, copies of HQ USAF/JAA and SAF/GC legal opinions 
pertaining to competing spouse SBP beneficiaries and copies of 
the AFPC/DPSIAR and AFRBA Legal Advisor evaluations described 
below were forwarded to the deceased former member’s widow for 
review and comment within 30 days (Exhibit I). In response, the 
deceased former member’s widow indicates the AFBCMR should not 
grant any corrections to the deceased former member’s record. 
She indicates there is no evidence the deceased former member 
elected former spouse coverage for any of his former spouses. 
The applicant failed to make a deemed election of SBP benefits 
within the one year of their divorce decree as required by law. 
The applicant’s assertion the deceased former member sent the 
wrong forms to DFAS was not substantiated. The AFBCMR should 
strictly enforce the deemed election requirements under the SBP 
program established by Congress in 1972 and subsequently amended 
in 1982, 1983, 1984, and 1985. She and the deceased former 
member were happily married for 18 years and she is now the 
proud widow of a service member. She trusts the AFBCMR will 
make a just and reasonable decision (Exhibit J). 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force office of 
primary responsibility (OPR) and the AFBCMR Legal Advisor, which 
are attached at Exhibits B and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR indicates that according to Defense Enrollment 
Eligibility Reporting System (DEERS) records, the deceased 
former member was married to Perla on 7 Dec 73 and he elected 
spouse only SBP coverage for her prior to his 1 Oct 77 
retirement. The parties divorced on 19 Jul 81 and SBP coverage 
was suspended. The applicant and the deceased former member 
married on 2 Feb 82 and SBP coverage was established on her 
behalf, effective 1 Mar 83. The parties divorced on 21 Nov 92 


and the deceased former member agreed to continue the applicant 
as the irrevocable beneficiary of the SBP in the divorce 
agreement. In Dec 92, DFAS received an SBP Open Enrollment 
Election form from the member requesting to change the 
applicant’s coverage from spouse to former spouse. DFAS did not 
honor the member’s election because Public Law 101-189 (29 Nov 
89), which authorized the open enrollment period, did not permit 
retirees who were SBP participants, to change their coverage 
from spouse to former spouse. There is no evidence either party 
submitted a valid former spouse election during the required 
time following their divorce. DEERS records show the member 
married XXX on 2 Jun 93, but he did not request that DFAS 
establish SBP coverage on her behalf. Nevertheless, XXX 
became the eligible SBP spouse beneficiary by operation of law 
on the first anniversary of their marriage. The member’s 
retired pay records erroneously reflect the applicant’s date of 
birth (1 Mar 38) as the eligible spouse beneficiary. SBP 
premiums were deducted from his retired pay until 1 Oct 08, when 
the paid-up SBP provision became effective. The member died on 
4 Apr 10 and his widow (XXX) is receiving payment of the SBP, 
which is completely offset by her receipt of Dependency and 
Indemnity Compensation (DIC). In addition, XXX received a 
refund of the SBP premiums deducted from the member’s retired 
pay and is receiving Special Survivor Indemnity Allowance 
(SSIA). 

 

A complete copy of the AFPC/DPSIAR evaluation is at Exhibit B. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant reiterates her argument that it was her deceased 
former husband’s intent to ensure she was his SBP beneficiary as 
evidenced by his efforts to ensure the divorce decree indicated 
such and his action to complete, sign, and send the election 
form to DFAS within a year of their divorce. The applicant 
argues that the Defense Authorization Act of 1984 added 
protection for former spouses where a court ordered that 
coverage be established. The deceased former member fulfilled 
this when he designated the applicant to be his SBP beneficiary 
voluntarily. In support of her response, the applicant provides 
an expanded statement and copies of the deceased former member’s 
retired pay statements. 

 

A complete copy of the applicant’s response is at Exhibit D. 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

The AFRBA Legal Advisor recommends denial, indicating there is a 
presumption of regularity that attends the conduct of 
governmental affairs that has not been overcome by an 


unsubstantiated assertion that the member did in fact make a 
timely election. Moreover, the applicant may be confusing the 
election requirement with the returned form at the time of the 
disallowed open enrollment. Absent the consent of the deceased 
former member’s widow (third spouse) to correct the record, 
there are no extraordinary circumstances here that would support 
not enforcing the deemed election requirement given the fact 
correcting the record in the manner requested will deprive the 
member’s widow of benefits to which she is legally entitled, 
although they are currently offset. In this case, the requested 
correction would also lead to the widow having a debt for the 
previously returned SBP premiums. If the Board is inclined to 
grant the requested remedy, a final decision should not be 
reached until the views of the deceased former member’s widow 
are solicited and considered. 

 

A complete copy of the AFRBA Legal Advisor evaluation is at 
Exhibit E. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant contends there is no evidence that her former 
husband received the “corrected form,” because for years after 
the divorce, and even after his subsequent marriage to XXX, 
the deceased former member continued to confirm the applicant 
was the rightful former spouse SBP beneficiary; he continued to 
bring her his pay stubs for 1993, 1994, and 1995, and these pay 
stubs indicate she is the rightful beneficiary since the date of 
birth listed on the pay statements is hers. Even if the Air 
Force asserts that she did not make her own election via the 
necessary paperwork and the statute of limitations has expired, 
the fact that she signed the purported “incorrect” form in a 
timely fashion – and at the deceased former member’s initiative 
– amounts to her intention to elect, under 10 USC 1448 and 1450, 
to be the former spouse beneficiary. The balance of the 
evidence indicates the deceased former member intended to name 
the applicant as his SBP beneficiary and that she intended to 
exercise her rights as a former spouse under the aforementioned 
statutes. While DFAS indicates there is no evidence that either 
party submitted a valid former spouse election during the 
required time, the facts presented above indicate the applicant 
and deceased former member took action to submit a valid former 
spouse election when they mailed the form. Following the 
submission of the form, the deceased former member’s pay stubs 
continued to reflect the applicant was the elected beneficiary, 
thus causing both parties to believe they had fulfilled their 
obligations in electing former spouse SBP coverage for the 
applicant. If information on the deceased former member’s pay 
statements had shown that she was not the beneficiary, she would 
have submitted a timely request for coverage. At no time, did 
she receive any communication indicating that she was not the 
beneficiary; thus, DFAS failed to give her the protection which 


was granted to her by law. The submission of the form, signed 
by both the applicant and the deceased former member, 
constitutes agreement on the part of the deceased former member 
to provide the applicant coverage. Her signature on that form 
also indicated that she was requesting such coverage. It is her 
hope that she will not be penalized because of the error in 
submitting the incorrect form and the error by the Air Force on 
the pay stubs, which kept her from exercising her right to 
request coverage in her own right as provided for by law. 

 

A complete copy of the applicant’s response is at Exhibit G. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. We took 
notice of the applicant’s complete submission, including her 
responses to the evaluations rendered in this case, in judging 
the merits of the case; however, we accept the determination of 
the SAF/MRB Legal Advisor and adopt his rationale as the basis 
for our conclusion the applicant has not demonstrated that 
extraordinary circumstances exist in this case that are required 
for this Board to grant relief in cases of competing SBP 
beneficiaries. While the applicant argues that she is being 
penalized for simply filling out the wrong form and that the 
equities of this case favor granting this application, we are 
not persuaded that extraordinary circumstances exist that would 
cause us to recommend correcting the record in contravention of 
our previous decisions involving similar cases. The AFBCMR has 
consistently refused to grant similar applications where there 
is a spouse with a legal entitlement to this benefit, unless 
that spouse relinquishes his/her right to this entitlement in a 
notarized statement. However, in this case, the deceased former 
member’s widow has unequivocally indicated that she will not 
relinquish her right to this benefit. Therefore, absent the 
consent of the deceased former member’s widow, we do not find 
there are extraordinary circumstances here that would cause us 
to render a determination that would serve to extinguish the 
legal rights of another party in contravention of our long- 
standing practice in similar cases. Therefore, because such an 
action would deprive the widow of a legal entitlement, granting 
the application is not appropriate in these circumstances. 

 

________________________________________________________________ 

 

 


THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-00062 in Executive Session on 2 May 12, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 24 Dec 10, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 31 Jan 11. 

 Exhibit C. Letter, SAF/MRBR, dated 11 Feb 11. 

 Exhibit D. Letter, Applicant, dated 2 Mar 11. 

 Exhibit E. Letter, SAF/MRB Legal Advisor, dated 19 Apr 11. 

 Exhibit F. Letter, AFBCMR, dated 25 Apr 11. 

 Exhibit G. Letter, Applicant, dated 12 May 11. 

 Exhibit H. Letter, AFBCMR, 12 Sep 11, w/atchs. 

 Exhibit I. Letter, AFBCMR, dated 9 Dec 11. 

 Exhibit J. Letter, Deceased Former Member’s Widow, 

 dated 28 Dec 11. 

 

 

 

 

 

 Panel Chair