RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-02274 INDEX CODE:	137.04

COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
His former spouse should be retained as his SBP beneficiary in order to comply with their divorce decree.

In support of his request, applicant provided a copy of a 20 Nov 96, Stipulation to Modify the dissolution decree.

Applicant’s complete submission, with attachment, is at Exhibit A.

STATEMENT OF FACTS:
The Air Force indicates the member and his former spouse were married on 28 Dec 85 and that he elected spouse and child SBP coverage based on full retired pay prior to his 1 Jun 89 retirement. According to the Court’s 20 Nov 96 Stipulation to Modify the dissolution decree, the parties divorce was finalized on 21 Jun 96. The Stipulation Order reflects the applicant agreed to maintain his former spouse as the beneficiary to the SBP; however, there is no evidence his former spouse submitted a valid request to deem an election for former spouse coverage within the first year following the modification as the law requires. The youngest child lost eligibility in Jun 99 due to age. The applicant and his current spouse married on 17 Jun 03, but he did not notify the Defense Finance and Accounting Service- Cleveland Center (DFAS-CL) of the change in his martial status or request that spouse coverage be established on his spouse’s behalf. The applicant claims that his former spouse remarried, but he did not provide a certified copy of her marriage certificate. On 24 Jun 08, DPSIAR requested copies of the original divorce decree and his former spouse’s marriage certificate; however, to date the member has not complied with their request for certified copies of those documents. DFAS-CL records continue to reflect his former spouse’s name and date of

birth () as the eligible spouse beneficiary and premiums continue to be deducted from the member’s retired pay.

AIR FORCE EVALUATION:
HQ	AFPC/DPSIAR	indicates	that	since	the	request	involves	two potential SBP beneficiaries, no recommendation is provided.

The complete DPSIAR evaluation is at Exhibit B.

ADDITIONAL AIR FORCE EVALUATION:
The SAF/MRB Legal Advisor recommends denial. Despite the Nov 96 court order directing the member to make the election, federal law makes the election unavailable when the deemed election is not timely effected. If there were not a surviving eligible beneficiary, he would recommend correcting the record, but there is. Accordingly, 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 member’s current spouse of benefits to which she is legally entitled. If the panel is inclined to grant the remedy, it should not reach a final decision until the view of the current spouse is solicited and considered.

A copy of the SAF/MRB evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION
On 11 Sep 08, the Board staff forwarded to the applicant copies of the Air Force evaluation, SAF/MRB legal opinion, and memorandums from HQ USAF/JAA and SAF/GCM for review and comment within 30 days. To date, no response has been received by this office. (Exhibit D)

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 the case; however, we agree with the opinion and recommendation
1.	
of the SAF/MRB legal advisor and adopt his rationale as the basis for our conclusion that the applicant has failed to sustain his burden that he has suffered either an error or injustice. Neither the applicant nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage. Additionally, only in the most unique of circumstances would the Board make a ruling on a case that involves two claimants to a benefit that only one of them can receive. However, if the legal beneficiary 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, and 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 Docket Number BC-2008-02274 in Executive Session on 8 Oct 08, under the provisions of AFI 36-2603:

Panel Chair, Member, Member

The following documentary evidence pertaining to Docket Number BC-2008-02274 was considered:

Exhibit A.	DD Form 149, dated 5 Jun 08, w/atch. Exhibit B.	Letter, AFPC/DPSIAR, dated 28 Jul 08.
Exhibit C.	Letter, SAF/MRB, Legal Advisor, dated 9 Sep 08. Exhibit D.	Letter, AFBCMR, dated 11 Sep 08, w/atchs.

Panel Chair