RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00093 INDEX CODE: 137.03 XXXXXXXXXXXX (DECEASED) COUNSEL: NONE XXXXXXXXXXXX HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: She be recognized as her former husband’s Survivor Benefit Plan (SBP) beneficiary. _________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his retirement from the Air Force, her former husband designated her as the beneficiary to receive all final payments and monies owned him upon his death. He started having SBP premiums deducted from his retired pay and designated her to receive the SBP benefit. In support of her appeal, the applicant provides copies of her driver’s license; marriage certificate to her former husband; a copy of his death certificate; obituaries; DD Form 2656-7, Verification for Survivor Annuity; the decedent’s DD Form 214, Certificate of Release or Discharge from Active Duty, her divorce decrees; and documents concerning the applicant’s claim of rights to the decedent’s property. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The decedent was a former member of the Regular Air Force who was progressively promoted to the grade of technical sergeant (E-6) effective 1 September 1992. He was released from active duty on 31 August 1994 and retired effective 1 September 1994, having served 16 years and 20 days on active duty. The remaining relevant facts, extracted from the member’s military service records, are contained in the Air Force advisory opinion at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR defers this case without recommendation based on guidance from the Board, because it involves two potential SBP beneficiaries. DPSIAR states the decedent married the applicant on 29 December 1978 and elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 September 1994 retirement. The parties divorced on 28 July 1995 and the divorce decree was silent on the SBP. There is no evidence the member submitted a valid former spouse election within one year following their divorce. The Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent married XXXXXXXXXXX on 4 May 1996; however, he did not notify the Defense Finance and Accounting Service of his change in marital status. XXXXXXXXXXX became the eligible spouse beneficiary on the first anniversary of the marriage. Records reflect the member died on 7 February 2008 and XXXXXXXXXX began receiving monthly SBP payments (currently $331). The complete DPSIAR evaluation is at Exhibit B. The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor states that in accordance with federal law, the decedent’s widow is the eligible beneficiary unless there has been a legally effective election. In this case, the election would have been voluntary since the court order did not mandate SBP coverage for his former spouse. If there were not a competing eligible beneficiary, the BCMR Legal Advisor would recommend correcting the record. He would also recommend correcting the record if the current spouse gave her notarized consent. Absent the consent, there are no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested would deprive the decedent’s current spouse benefits to which she is legally entitled. The complete BCMR Legal Advisor’s evaluation, with attachments, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the BCMR Legal Advisor’s evaluation was forwarded to the applicant on 11 May 2010 for review and response within 30 days (Exhibit D). The applicant responded by requesting the Board consider all parties involved and by reviewing all the facts before reaching a final decision. She was married to the decedent for 15 years of his time in the Air Force. She was recognized by the Air Force for her unselfish, faithful, and devoted service upon his retirement. She has certain rights that his second spouse did not earn. The applicant’s complete rebuttal, with attachments, is at Exhibit E. _________________________________________________________________ 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 this case; however, we agree with the opinion and recommendation of BCMR Legal Advisor and adopt his rationale as the basis for our decision that the applicant has failed to sustain her burden that she has suffered either 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 AFBCMR Docket Number BC-2010-00093 in Executive Session on 30 September 2010, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXXX, Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-00093: Exhibit A. DD Form 149, dated 5 Jan 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 17 Mar 10. Exhibit C. Letter, SAF/MRB, dated 4 May 10, w/atchs. Exhibit D. Letter, AFBCMR, dated 11 May 10. Exhibit E. Letter, Applicant, not dated, w/atchs. XXXXXXXXXXXXXXXXXXX Panel Chair