RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-00796 INDEX CODE:	137.00
COUNSEL:	HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
She	receive	former	spouse	coverage	under	the	Survivor	Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
In a six page memorandum, the applicant’s attorney makes the following key contentions:

1.	The applicant and her former spouse were divorced in Dec 95 after being separated since his retirement in 1979. The divorce decree stipulated she was entitled to 45 percent of her husband’s pension, retirement or other deferred compensation, and as part of their settlement agreement she was awarded the SBP coverage.

2.	The settlement also stipulated that the applicant’s former spouse would take whatever steps necessary to maintain SBP coverage on behalf of the applicant. The current spouse has not filed any paperwork necessary to receive the SBP benefits.

In support of her request, applicant provides a copy of her attorney’s memorandum, a copy of her divorce, and copy of her attorney’s cover letter to the Board.

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

STATEMENT OF FACTS:
Defense Enrollment Eligibility Reporting System (DEERS) records show the former member and the applicant were married on 2 Jul
59.  The former member elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Nov 79 retirement. On 8 Dec 95, the parties divorce was finalized.

AIR FORCE EVALUATION:
DPSIAR has no recommendation since it involves two potential SBP beneficiaries. DPSAIR states the divorce decree ordered the applicant remain 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.  Records (DEERS) show the former member remarried on
11 Dec 95, but did not notify the Defense Finance and Accounting Service (DFAS) of the change in his marital status or request spouse coverage be established on his new wife's behalf. The DFAS records continue to reflect the applicant's name and incorrect date of birth as the eligible spouse beneficiary and premiums continue to be deducted from the former member’s retired pay.

The DPSIAR complete evaluation is at Exhibit B.
The AFRBA Legal Advisor recommends denial and states in part that despite the Dec 95 court order directing the former member to convert to former spouse coverage, federal law makes the election unavailable when the deemed election is not timely filed. The applicant may not have known that she needed to make the election but that does not change the legal requirement. If there were not a competing eligible beneficiary, he would recommend correcting the record, but there is. He would also recommend correcting the record if the current spouse gives her notarized consent. Absent that consent, no extraordinary circumstances exist that support not enforcing the deemed election requirement given the fact that correcting the record in the manner requested will deprive the former member’s current spouse benefits to which she is legally entitled.

The complete AFRBA Legal Advisor evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 19 Jun 09 for review and comment within 30 days. As of this date, this office has received no 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.
1.	

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 override the rationale provided by the BCMR Legal Advisor. In this respect, we took note of the divorce decree that ordered the applicant to provide SBP coverage for his former spouse. 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. We are aware that in extraordinary circumstances, it is within the authority of the Board to correct a record if it finds it necessary to prevent an error or injustice. However, in this case, we agree with the Legal Advisor that there are no extraordinary circumstances here that support not enforcing the deemed election requirement given the fact that a correction of the record in the manner requested would deprive the applicant's current spouse of the benefits to which she is legally entitled. In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the Legal Advisor and adopt his rationale as the basis for our decision the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice. Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered.

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-2008-00796 in Executive Session on 3 Nov 09, under the provisions of AFI 36-2603:

, Panel Chair, 
Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 18 Jul 09, w/atchs. Exhibit B.	Letter, AFPC/DPSIAR, dated 4 Apr 08.
Exhibit C.	Letter, SAF/MRB Legal Advisor, 17 Jun 08. Exhibit D.	Letter, AFBCMR, dated 19 Jun 08.

Panel Chair