RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02466

XXXXXXXXXXXXXXXX	COUNSEL: XXXXX

 XXXXXXXXXXXXXXXX	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The deceased service member’s record be changed to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).  

APPLICANT’S CONTENTIONS

She was to receive the SBP upon his death per their divorce decree.  

On 14 Jul 09, she received notice her payments of retired pay under the Uniformed Service Former Spouse Protection Act (USFSPA) were terminated.  She was advised an election for former spouse was not made within one year of their divorce.  She mailed them a copy of the divorce decree in 1990 in order to have his pay garnished for payment.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the former spouse of a deceased retired Air Force lieutenant colonel (O-5).  

On 1 Apr 80, according to a Certificate of Marriage, the applicant and the service member married.

According to the DD Form 2656, Data for Retired pay, dated 15 Dec 94, the service member elected Option B (Coverage for Spouse and Child[ren]), based on reduced retired pay and his spouse (the applicant) concurred with the decision.

On 1 Apr 95, according to Special Order AC-015415, dated 7 May 94, the service member retired from the Regular Air Force.  

On 4 Jan 96, the applicant and the service member divorced.  The Consent Divorce Decree and the Order Dividing Military Retirement Benefits ordered the service member make an SBP election and/or be continued and maintained in full force naming his former spouse as the beneficiary and that it should not be altered or withdrawn by the service member during his lifetime.  However, the service member did not file a change to his SBP election under Title 10 United States Code, Section 1448(b)(3)(A)(iii) (10 U.S.C. § 1448(b)(3)(A)(iii)), nor had the applicant filed a deemed election under 10 U.S.C. § 1450(f)(3)(C).

On 11 Sep 04, the service member re-married.  

On 7 Jan 15, according to a Certificate of Death, provided by the applicant, the service member passed away.
On 16 Jun 19 and 10 Dec 20, the Board sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP Marital Status Affidavit (Deceased Retiree); SBP Marital Status Affidavit (Former Spouse); SBP Marital Status Affidavit (Retiree); SBP Release of Benefits Affidavit (Current Spouse); SBP Release of Benefits Affidavit (Arrears of Pay).  

On 23 Jul 20, the applicant returned her completed affidavit but did not provide the SBP Release of Benefits Affidavits. 

On 1 Feb 21, the Defense Finance and Accounting Service (DFAS) advised the deceased service member’s records showed he named his daughter and son as his arrears of pay (AOP) beneficiaries and his spouse as the SBP beneficiary.  His widow is currently receiving the SBP annuity.  

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

10 U.S.C. § 1448(b)(3)(A)(iii).  “An election to convert spouse coverage to former spouse coverage, “must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.” 

10 U.S.C. § 1450(f)(3)(C).  If a court has ordered a service member to elect former spouse SBP, then a former spouse can submit his or her own request to DFAS for former spouse SBP coverage.  This is known as a “deemed election request.”  There is a time limit:  “An election may not be deemed to have been made … unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.”  

AIR FORCE EVALUATION

AFPC/DPFFF makes no recommendation since it involves competing claimants.  A person’s eligibility to receive a spouse SBP annuity terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage.  One of the following actions must be taken within the first year following divorce:  (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on their behalf if legal documentation that the service member agreed or the court ordered the former spouse coverage.  If neither the service member nor the former spouse requests an election change during the one-year eligibility period, former spouse coverage may not be established thereafter.  Even though a member fails to notify DFAS of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the service member’s death.

The decedent elected spouse and child coverage, based on a reduced level of retired pay prior to his 1 Apr 95 retirement.  The parities divorced on 4 Jan 96 and the service member was required to designate the applicant as the SBP beneficiary.  However, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires.  The former service member re-married on 11 Sep 04 and SBP premiums continued being deducted from his retired pay until his death.  His widow has been receiving a monthly SBP since 1 Apr 15.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 22 Jan 21 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the applicant contends she is the rightful SBP beneficiary, the evidence shows the former service member did not elect former spouse SBP nor did the applicant request he be deemed to have made an election for former spouse SBP within one year of their divorce as required by law.  The Board also notes the decedent’s widow is currently receiving the SBP benefits and the applicant did not provide the Board the SBP release of benefits affidavit.  The Secretary of the Air Force General Counsel’s office has advised the Board to exercise prudence when correcting a record that may be unfavorable to a person other than the applicant.  This is called a competing interest.  While there is no strict statutory prohibition, there is a strong presumption that no record correction should be made if the result would be unfavorable to another person eligible to seek relief from the Board.  For this reason, in SBP cases, the Board insists on receiving affidavits or notarized statements of consent from all parties, including the current spouse, the former spouse, eligible children, and the service member.  In the absence of such affidavits, the Board typically denies relief. The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-02466 in Executive Session on 24 Jun 21:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:
Exhibit A:	Application, DD Form 149, w/atchs, dated 28 Oct 19.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:  Letter, SAF/MRBC, w/atchs, 19 Jun 19.
Exhibit D: Applicant response, w/atchs, dated 23 Jul 20.
Exhibit E:  Letter, SAF/MRBC, w/atchs, dated 10 Dec 20.  
Exhibit F:	Advisory, AFPC/DPFFF, dated 21 Jan 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Jan 21.
Exhibit H:	Email, DFAS, dated 1 Feb 21.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.