RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04418 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Entitlement of retired pay from her deceased former husband be reinstated. APPLICANT CONTENDS THAT: On the death of her former spouse, the court-ordered portion of his retirement benefit was terminated due to a four month lapse in service prior to their marriage. Until her Senator intervened, she was unaware she could appeal the termination of benefits. The Board should find it in the interest of justice to review her untimely application because she was not informed before now that she could appeal. In support of her request, she provides copies of the marriage certificate, the death certificate, her deceased husband’s DD Form 214, Report of Separation from Active Duty and divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: In a copy of the DD Form 214, and submitted by the applicant, her deceased husband retired from active duty on 30 Jun 79 with an honorable character of service. He was credited with 24 years, 8 months and 5 days of active service and credited 24 years, 9 months and 22 days service for pay. According to a Marriage Certificate issued by the State of Indiana, County of XXXXX, and submitted by the applicant, she and the former member were married on 28 Nov 59. According to a Divorce Decree issued by the State of Texas, County of XXXXX, and submitted by the applicant, she and the former member were divorced 11 Apr 86. A Copy of the AFBCMR marital status affidavit was forwarded to the applicant on 6 Nov 14, to verify their marital status (Exhibit B). The applicant responded with a signed and notarized affidavit, dated 17 Nov 14, which indicates that she is not currently married. AIR FORCE EVALUATION: DFAS-CL recommends denial indicating in accordance with the law, former spouse payments are terminated upon the death of the member or the former spouse. The divorce decree states that she is awarded 38% of her former spouse’s military disposal retired pay. The Department of Defense Financial Management Regulation (DoDFMR), Volume 7B, Chapter 29, Paragraph 291102(A), Termination and Suspension of Retired Pay Award Payments, states that “Unless the court order specifies otherwise, payments will stop upon the designated agent’s receipt of notice of death of either party.” There is no Federal law that automatically entitles a former spouse to a portion of the ex-spouse’s military retired pay. The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, provides a former spouse with a means of enforcing a State court order awarding military retired pay as property. Title 10, United States Code, Section 1408(f)(4) advises that a former spouse qualifying for direct payments under the USFSPA is entitled to receive payments until the date of death of the member or former spouse, whichever occurs first. Since her former spouse died on 24 Jun 90, his retirement pay was terminated and the applicant’s former spouse division of pay was also terminated. Since he no longer receives retirement pay, there is no payment for the applicant to receive 38% from. We have no record of an original Survivor Benefit Plan (SBP). Since the former service member did not have SBP coverage, it could not be awarded in the divorce degree. The complete DFAS-CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the Air Force evaluation forwarded to the applicant on 9 Jan 15, she submitted another copy of the page from her divorce decree directing her deceased husband pay her that portion of his retirement pay awarded to her in the divorce settlement, to ensure it was not overlooked. She assumes the Board has all of the information she provided with her original request. The complete APPLICANT review is at Exhibit D. 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 and rebuttal, including copies of her marriage certificate; deceased husband’s DD Form 214 and death certificate; and divorce decree, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While the divorce decree states that the applicant is awarded 38% of the deceased former member’s military disposable retired pay, Federal law advises that a former spouse, qualifying for direct payments of retired pay, is entitled to receive payments until the date of death of the former spouse. Since the former member’s retirement pay terminated upon his death, there is no division of payment the applicant is entitled to. Additionally, the record is absent of a Survivor Benefit Plan election made by the deceased former member. Therefore, we find no basis to recommend granting the requested relief. 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 documentary evidence pertaining to AFBCMR Docket Number BC-2014-04418 was considered: Exhibit A. DD Form 149, dated 28 Oct 14, w/atchs. Exhibit B. Letter, SAF/MRBR, dated 6 Nov 14. Exhibit C. Memorandum, DFAS-CL, dated 22 Dec 14. Exhibit D. Letter, Applicant, dated 26 Jan 15.