RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04295 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: She be entitled to benefits under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE APPLICANT CONTENDS THAT: She was just recently informed, after her former husband’s death, that she was listed as the beneficiary on his SBP. In support of her appeal, the applicant provides a personal statement; a letter of support from her daughter; a copy of the decedent’s death certificate and the Joint Petition for Dissolution of Marriage. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSIAR did not provide a recommendation. They noted, the applicant and the former member were married on 1 Aug 77, and he elected spouse and child coverage based on full-retired pay prior to this 1 Dec 85 retirement. The applicant provided a copy of the parties Joint Petition for Dissolution of Marriage, but did not provide a copy of the final divorce decree or separation agreement. They were unable to determine when the parties divorce was finalized and there is no evidence either party submitted a valid former spouse election during the required time following their divorce. Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent married again in Aug 89, but he did not notify the Defense Finance and Accounting Service (DFAS) of the change in his marital status or request that spouse coverage be established on his new spouse’s behalf. The decedent’s retired pay account continued to reflect the applicant’s name and date of birth as the eligible spouse beneficiary. Nevertheless, the new spouse became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. SBP premiums were deducted from the decedent’s retired pay until his death, 29 Aug 10. The decedent’s widow is currently receiving a monthly SBP annuity of $930.00; not the applicant. A copy of the final divorce decree; to include the separation agreement; marriage certificate, if remarried or divorce decree from that marriage was requested; however, she did not respond. The complete AFPC/DPSIAR evaluation is at Exhibit C. The Air Force Review Boards Agency (AFRBA) Legal Advisor recommends denial, stating, in part, the applicant has not established that the court ordered SBP to continue and offers only the statements of family members stating the decedent intended to provide for the applicant. The applicant might not have known about the requirement to have a court order SBP and either have an election filed or file her own deemed election, but that does not change the legal requirements. The AFRBA Legal Advisor notes, if there were not a competing eligible beneficiary, or if the widow gives a notarized a consent, he would recommend correcting the record. However, since there is a competing eligible beneficiary, 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 former member’s widow of benefits to which she is legally entitled. The complete AFRBA Legal Advisor evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant reiterated her original contentions that, although she retired from the military, it was the decedent’s intent that she and their daughter be provided survivor benefits in the event of his death. In support of the appeal, the applicant provided a copy of the divorce decree, as requested, and her DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with her 31 Jan 2000 separation. The applicant’s complete response, with attachments, 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 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, including her response to the Air Force evaluation, and her late husband’s military records in judging the merits of the case; however, while we sympathize with the applicant, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and the Air Force Review Boards Agency Legal Advisor, and adopt the rationale expressed 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 basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES 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-2010-04295 in Executive Session on 7 June 2011 and 6 July 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-04295 was considered: Exhibit A. DD Form 149, dated 27 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 12 Jan 11. Exhibit D. Letter, SAF/MRB, dated 11 Apr 11, w/atch. Exhibit E. Letter, AFBCMR, dated 19 Apr 11, w/atchs. Exhibit F. Letter, Applicant, dated 19 May 11, w/atchs.