FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04530 COUNSEL: NONE

HEARING DESIRED: NO

APPLICANT REQUESTS THAT:

Her former husband’s Survivor Benefit Plan (SBP) coverage be changed to “Former Spouse,” designating her as the beneficiary.

APPLICANT CONTENDS THAT:

Her divorce decree states her former husband would keep the SBP “in full force and effect”, naming her as the beneficiary. She never received any notification of the fore-mentioned requirement nor does she believe her former husband was aware of the requirement.

She believes her former husband would want the benefit to be executed as agreed upon in their divorce decree. It is obvious that, by continuing the payment, her former husband was unaware of any “deemed election” requirement, and by continuing to identify her as the beneficiary, he wished to fulfill his obligation.
The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

According to the Stipulation Judgement of Dissolution of Marriage the applicant’s former husband was ordered to “keep in full force and effect the SBP with the applicant named as the sole beneficiary thereon, and shall sign all documents and do all acts to have her continued as said beneficiary when she becomes his former spouse. Keeping the SBP in full force and effect includes him paying the premium thereon.”

On 5 Sep 17, the AFBCMR staff requested the applicant provide a notarized marital status affidavit and SBP Release of Benefits.  As of this date, no response has been received by this office.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force Office of Primary Responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF has not made a recommendation because of the potential for competing interests between the former service member’s current spouse and his former spouse. A person’s eligibility to receive a spouse SBP annuity terminates on divorce.

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

In this case, the applicant and the member married and he elected spouse only SBP coverage based on reduced level of retired pay prior to his 1 Aug 83 retirement. The parties divorced on 7 Feb 86, and in the Stipulation Judgement of Dissolution of Marriage, the member was ordered to “keep in full force and effect the SBP on his military retirement with the applicant named as the sole beneficiary. There is no evidence the member submitted a valid election change during the authorized period.

The Defense Enrollment Eligibility Reporting System (DEERS) records show the member married his second wife on 22 Aug 86, and they divorced on 26 Jan 92; however; there is no evidence the member requested the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) establish SBP coverage on her behalf.

DEERS records reflect the member married his third wife on 14 Oct 95; however, he did not notify DFAS-CL of the change in marital status nor request that spouse coverage be established on his new wife’s behalf. DFAS-CL records continued to erroneously reflect the applicant as the eligible spouse beneficiary; however, his third wife became the eligible SBP beneficiary by operation of law on the first anniversary of their marriage.

The applicant did not provide a copy of the member’s death certificate. DEERS records reflect he died on 9 May 16, and SBP spouse premiums were deducted from the member’s retired pay until his death. The member’s widow is eligible to receive an SBP annuity of $1,433, but she has not applied for the benefit.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter dated 22 Feb 18, the applicant’s son states he was informed of his father’s SBP intention by his stepmother while settling his father’s estate. He states his father purposely did not change the recipient of his SBP as his mother was the intended beneficiary.
In support of her response, the applicant provides a copy of her former spouses death certificate.
A copy of the applicant’s rebuttal, with attachment, is at Exhibit F.	 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 in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. The Board cannot use its equitable authority to grant relief where the Board’s action could deprive another party of a potential legal entitlement. Thus, the competing interests in this case preclude us from recommending relief be granted to the applicant. However, should the applicant obtain a release from the member’s current spouse relinquishing her right, by law, as the SBP annuitant, we would be willing to reconsider the case based on new evidence. However, on the current evidence of record, we find no basis to recommend granting the requested relief.
1.	

THE BOARD RECOMMENDS 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-2016-04530 in Executive Session on 29 Mar 18, under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:
Panel Chair
Member Member
The following documentary evidence was considered:

Exhibit A. DD Form 149, dated 12 Nov 16, w/atchs. Exhibit B. Excerpts from Master Personnel Records. Exhibit C. Letter, SAF/MRBC, dated 5 Sep 17, w/atchs. Exhibit D. Memorandum, AFPC/DPFFF, dated 23 Oct 17. Exhibit E.  Letter, SAF/MRBC, dated 5 Feb 18, w/atch.
Exhibit F.  Letter, Applicant, dated 22 Feb 18, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above matter.