RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03362 INDEX CODE: 137.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: Her deceased former husband’s records be corrected to show that he filed a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) annuity. ________________________________________________________________ APPLICANT CONTENDS THAT: She and her former husband thought there would be no problem in her receiving the SBP benefits. The SBP premiums were faithfully paid every month. She and her husband were married the first time in Mexico on 8 Jun 82. They were told their marriage was not legal in the United States, and they remarried in 1996, in Nevada. They later found out that her former marriage had not been formalized, which resulted in them getting their marriage annulled in Mar 03. They remained together until his death in 2003. Her husband remarried another woman so that the benefits he paid a good part of his life would not go to waste. In support of her request, applicant provided her personal statement, a DD Form 2656-7, Verification for Survivor Annuity, a Form W-4P, Withholding Certificate for Pension or Annuity Payments, her former husband’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, a letter from Defense Finance and Accounting Service (DFAS), a marriage receipt and certificate from their marriage in Mexico, a marriage certificate from their marriage in Nevada, a copy of the marriage annulment, her former husband’s death certificate, and a copy of her former husband’s retiree account statement. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The Air Force stated the decedent retired effective 1 Aug 72. There is no evidence he had an eligible dependent during the initial open enrollment period following the Plan’s 21 Sep 72 implementation, and he submitted no election at that time. The member and the applicant were allegedly married in Tijuana, Mexico on 8 Jun 82, and he elected spouse only coverage based on a reduced level of retired pay during the open enrollment authorized by Public Law (PL) 97-35 (1 Oct 81 – 30 Sep 82). The parties remarried in Reno, NV on 22 Aug 96; that marriage was annulled on 19 Mar 03. Defense Enrollment Eligibility Reporting System (DEERS) records show the member married another woman on 8 Apr 03. SBP spouse premiums were continuously deducted from the decedent’s retired pay until his 8 Nov 03 death. Since he died before the first anniversary of his 8 Apr 03 marriage, she is not eligible to receive SBP payments. The Defense Finance and Accounting Service records erroneously reflect the applicant’s name and date of birth (16 Jan 33) as the eligible spouse beneficiary. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSIAR recommends denial. There is no evidence of Air Force error. The member’s election under PL 97-35 for spouse SBP coverage on the applicant’s behalf was erroneously based upon an invalid marriage which was later annulled. Their 8 Jun 82 marriage was not a legal union since the applicant was married to another party at that time. Therefore, there was never a valid marriage between the decedent and the applicant. Without a valid union under the statute, benefits may not be paid. The complete DPSIAR evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided additional documents in support of her claim for the SBP annuity: 1) a copy of their 2002 Income Tax Return; 2) a letter from her doctor stating that she was with her husband at the time of his death; 3) a copy of her former husband’s Will; 4) a homeowners policy declaration (naming the insured as husband and wife); 5) a life insurance policy (showing her as the wife and beneficiary); and 6) a homeowners policy (showing them as husband and wife). The money she was supposed to get from the life insurance policy was not paid due to a mistake on the form. She and her former husband felt there would be no problem with her receiving the SBP annuity since she is the only one who can receive it. At the time the SBP was taken out they thought their marriage was legal. The applicant’s complete response, with attachments, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, noting that she was never legally married to the decedent, she cannot be considered a former spouse, and is therefore, not eligible for SBP annuity payments under the applicable statute. Accordingly, we find no plausible basis upon which to recommend granting the relief requested. The Air Force office of primary responsibility has recommended that we consider voiding the decedent's 23 Sep 82 election for SBP coverage for the applicant, suggesting that the "erroneous deductions of SBP premiums for spouse coverage be refunded to the applicant." We carefully considered this recommendation; however, we came to the conclusion that taking such action would not be appropriate. In this regard, this recommended correction appears to leave too many unanswered questions; especially, who would actually be entitled to the refund of the premiums since it appears the applicant and the decedent were never legally married. We believe the possibility exists that rendering such a determination could lead to a claims dispute. Therefore, we believe it would not be prudent for the AFBCMR to exercise its discretionary authority in this matter and such decision may need to be addressed in a court of law. In view of the foregoing, we find no compelling basis to recommend granting the relief sought or recommended in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2007-03362 in Executive Session on 14 Feb 08, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2007-03362 was considered: Exhibit A. DD Form 149, dated 9 Oct 07, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 19 Nov 07. Exhibit C. Letter, SAF/MRBR, dated 21 Dec 07. Exhibit D. Letter, Applicant, dated 11 Jan 08, w/atchs.