RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-00666 INDEX CODE: 137.01 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: Her former husband’s records be corrected to show her as the eligible Survivor Benefit Plan (SBP) beneficiary. ________________________________________________________________ _ APPLICANT CONTENDS THAT: She was married to the former member the entire time he was in the Air Force, almost 24 years. She was left at home to take care of the kids, house, yard, and everything that goes with being married to a military man. They never lived close to family so she had to do everything herself. He was overseas long term (13 and 18 months) and had a lot of temporary duties (TDYs) in the 1980’s in the states and overseas. She lost two children while he was TDY and went through the heartache by herself. She supported his dream/desire to finish up his college so he could become an officer and then again when he got his Master’s degree. She stayed with him when he had very little money and lived from payday to payday. After about seven years of retirement, he walked out on her for another woman. Their divorce decree covered SBP and, up until the day the former member died, he told his son and his wife, as well as his current spouse that she (applicant) would get the SBP. She assumes the former member thought the divorce decree would cover her getting the SBP annuity. However, upon the former member’s death, the current spouse looked into everything and decided to keep the SBP annuity. She asks if a booklet explaining SBP can be written and provided to wives of military members prior to the member’s retirement. Had she been informed she would have never signed the divorce papers until he signed the SBP papers. In support of her request, the applicant provided statements in her own behalf, a copy of the former member’s death certificate, and a copy of her divorce decree. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant and former member were married on 25 Jun 66. He elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Mar 91 retirement and the applicant concurred in writing to the election. The parties divorced on 6 Nov 98 and the court ordered that the applicant be named the “irrevocable beneficiary” of the SBP. There is no evidence either party submitted a valid former spouse election during the required time following the divorce. The Defense Enrollment Eligibility Reporting System (DEERS) records show the former member married again on 8 Dec 98 but did not request the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) establish SBP coverage on his current spouse’s behalf. However, she became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. The member’s retired pay records continued to erroneously reflect the applicant’s name and date of birth as his spouse beneficiary and SBP premiums were deducted from the member’s retired pay until his 4 Dec 07 death. The former member’s widow is currently receiving a monthly SBP annuity of $268. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSIAR did not provide a recommendation as there are two potential SBP beneficiaries. The complete AFPC/DPSIAR evaluation is at Exhibit B. ________________________________________________________________ _ SAF/MRB LEGAL ADVISOR’S EVALUATION: The SAF/MRB Legal Advisor recommends denial. He states that despite the 1998 court order directing the member to make the election, federal law makes the election unavailable when the deemed election is not timely effected. If there were not a competing eligible beneficiary, he would recommend correcting the record, but there is. He states he would also recommend correcting the record if the current spouse gives her notarized consent. Absent that consent, he sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the member’s current spouse of benefits to which she is legally entitled. The complete SAF/MRB Legal Advisor’s evaluation, with attachments, is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force and SAF/MRB Legal Advisor’s evaluations were forwarded to the applicant on 29 May 08 for review and comment within 30 days (Exhibit D). As of this date, this office has not received a response. ________________________________________________________________ _ 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, we agree with the opinion and recommendation of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ________________________________________________________________ _ 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- 2008-00666 in Executive Session on 25 September 2008, under the provisions of AFI 36-2603: XXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXX, Member XXXXXXXXXXXXX, Member The following documentary evidence pertaining to Docket Number BC-2008-00666 was considered: Exhibit A. DD Form 149, w/atchs, dated 14 Feb 08. Exhibit B. Memorandum, AFPC/DPSIAR, dated 18 Mar 08. Exhibit C. Memorandum, SAF/MRB Legal Advisor, w/atchs, dated 6 May 08. Exhibit D. Letter, AFBCMR, w/atchs, dated 29 May 08. 2 3 4 5