RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-04311

TOM G. WALKER, JR	COUNSEL:  NONE
	(SERVICE MEMBER-RETIREE)

PATRICIA R. WHITMAN	HEARING:  NO
	(APPLICANT)

APPLICANT REQUESTS THAT:

Her retired former spouse’s record be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP). 

APPLICANT CONTENDS THAT:

Her former spouse enrolled in the SBP prior to retirement and their divorce.  However, he failed to complete the required paperwork for former spouse coverage.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant’s former spouse is a retired Air Force technical sergeant.

On 11 Feb 09, the service member elected Spouse and Child coverage under the SBP, naming the applicant as the spouse beneficiary; they had been married since 1991.

On 22 Jun 09, the applicant and the service member were divorced.  The Decree of Dissolution, provided by the applicant, states, “the court orders that the SBP shall remain in full force and effect for the benefit of the Petitioner [former spouse] and that the respondent [service member/retiree] shall also obtain the SBP benefits for the benefit of the children.”  Neither the applicant nor the service member submitted a valid SBP election to transfer the existing SBP benefits to the applicant as former spouse within the one-year period required by federal law.

On 1 Jul 09, the service member retired.
On 22 Jan 10, the retiree married his second spouse.

On 8 Oct 16, the applicant filed her request for correction of the retiree’s records.

On 4 Nov 16, the retiree and his second spouse divorced.

On 30 Mar 17, at the request of the retiree, who pointed out he had not actually been married at the time of his retirement, the Department of Defense Finance and Accounting Service (DFAS-CL) suspended the spouse coverage, refunded a portion of the premiums paid, and established child-only SBP coverage.

On 31 Mar 17, the Board sent the applicant the standard affidavits required to establish whether there are conflicting interests in SBP cases.  These include affidavits from the applicant, the retiree, and the retiree’s current spouse.  The applicant returned only the affidavit regarding her own current marital status, according to which the applicant has not remarried (Exhibit C).

On 11 Aug 17, according to the Defense Enrollment Eligibility Reporting System (DEERS), the retiree married his third and current spouse.  DEERS records also show the member did not notify DFAS-CL of the change in his marital status or request that spouse coverage be established on his new wife’s behalf.

For more information, see the excerpt of the retiree’s record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION:

AFPC/DPFFF initially recommended granting the request, but, as of 26 Jun 18, revised their advisory to make no recommendation in the case due to the competing interest.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluation to the applicant on 5 Feb 18 (initial) and 27 Jun 18 (revised) for comment within 30 days (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board cannot use its equitable authority to grant relief where the Board’s actions could deprive another party of a potential legal entitlement.  Thus, the competing interests in this case preclude the Board from recommending relief be granted to the applicant.  However, should the applicant obtain a release from her former spouse and his current spouse relinquishing their right, by law, the Board would be willing to reconsider the case.  However, on the current evidence of record, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04311 in Executive Session on 20 Sep 18:

Mr. Clifford D. Tompkins, Panel Chair
Mr. Ricky L. Bennett, Panel Member
Ms. Gail P. Forest, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 8 Oct 16.
Exhibit B:	Documentary evidence, including excerpts from official records.
Exhibit C:  Documents from the applicant, dated 12 May 17.
Exhibit D:	Advisory opinion, AFPC/DPFFF, dated 8 Aug 17 (corrected).
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 5 Feb 18 and 27 Jun
18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.