RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01181
	 (DECEASED)	COUNSEL: NONE
	 (APPLICANT)	HEARING DESIRED: NOT INDICATED

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APPLICANT REQUESTS THAT:

Her former spouse’s (decedent) records be corrected to reflect 
he made a timely election for former spouse coverage under the 
Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

In 1987, she agreed to the conversion of the SBP election from 
“Spouse Only,” to “Former Spouse” coverage.  However, she was 
not aware she had one year from the date of their divorce to 
submit a deemed election.

In support of her request the applicant provides copies of her 
Final Judgment of Divorce, Certificate of Death and SBP election 
Letter.

Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained 
in the letter prepared by the appropriate office of the Air 
Force at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPFFF does not provide a recommendation because it involves 
two potential SBP beneficiaries.  They do note that Defense 
Enrollment Eligibility Reporting System (DEERS) records show the 
applicant and the decedent married on 20 Oct 1970.  The decedent 
retired effective 1 Sep 1985 and elected spouse only SBP 
coverage based on a reduced level of retired pay.  The parties 
divorced on 23 Jan 1987, and the divorce decree ordered the 
conversion of the SBP annuity.  However, there is no evidence 
either party submitted a valid former spouse election during the 
required time following their divorce.  In Feb 1987, the finance 
center suspended SBP premiums retroactive to the date of their 
divorce.  DEERS records show the decedent remarried on 5 Oct 
1987, but he did not request that the Defense Finance and 
Accounting Service - Cleveland Center (DFAS-CL) establish SBP 
coverage for his surviving spouse. While there is no evidence 
his widow has applied for payment of the SBP annuity, she became 
the eligible spouse beneficiary on the first anniversary of 
their marriage.  The member died on 2 Jan 2013.

The complete DPFFF evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 7 Jun 2013 and 31 Oct 2013, copies of the Air Force 
evaluation and SAF/GCM memorandum were forwarded to the 
applicant for review and comment within 30 days.  As of this 
date, this office has received no response (Exhibit D).

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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.  The 
applicant's complete submission was thoroughly reviewed and her 
contentions were duly noted.  However, we do not find the 
applicant's assertions and the documentation presented in 
support of her request sufficiently persuasive to grant the 
requested relief.  In this respect, we took note of the divorce 
decree that ordered the conversion of the SBP annuity for the 
applicant.  However, we also note that federal law makes the 
election unavailable when the deemed election is not timely 
effected, and no evidence has been presented which shows a 
deemed election was made within the one-year time period 
mandated by the law.  Although the AFBMCR has the authority, it 
should not rule on a dispute between two claimants to a benefit 
that only one of them can receive.  Furthermore, it is not 
appropriate for the Board to adjudicate such a dispute since 
that task is more properly left to the courts.  However, if the 
deceased member’s surviving spouse submits a notarized statement 
relinquishing her entitlement to the SBP, the Board may be 
willing to reconsider the applicant’s appeal in consideration of 
this evidence.  In view of the foregoing, we find no basis to 
recommend granting the relief sought in this application. 

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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.

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The following members of the Board considered this application 
in Executive Session on 13 Dec 2013, under the provisions of AFI 
36-2603:

     , Panel Chair
     , Member
     , Member

The following documentary evidence was considered in AFBCMR BC-
2013-01181:

    Exhibit A. DD Form 149, dated 13 Feb 2013, w/atchs.
    Exhibit B. Letter, AFPC/DPFFF, dated 28 May 2013.
    Exhibit C. Letter, SAF/MRBR, dated 7 Jun 2013.
    Exhibit D. Letter, SAF/MRBC, dated 31 Oct 2013, w/atch.

								
								Panel Chair