RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02910 INDEX CODE:	137.00
COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His record be changed to show a timely election for former spouse coverage for his first former spouse under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
When he and his first former spouse divorced, his divorce agreement required that he set up a direct payment allotment to his former spouse for a portion of his retirement pay and for survivor benefits. He complied with the divorce agreement. During the time of their divorce his former spouse was undergoing treatment for a mental illness. Two years later he married his second spouse.  In a property agreement between spouses dated
9 March 2001, she acknowledged that she was not entitled to any benefit program existing by reason of past, present or future employment, including but not limited to Air Force retired pay. He and his second former spouse divorced on 18 December 2006.

In support of his request, the applicant provided a personal statement, retirement order, DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, divorce decrees, power of attorney, and marriage certificate.

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

STATEMENT OF FACTS:
The applicant and his first former spouse were married on 21 June 1941.

On 16 March 1964, the applicant retired from the Air Force.
The applicant elected spouse-only SBP coverage based on a full retired pay during the plan's initial open enrollment period (21 September 1972 to 20 March 1974).  He and his first spouse
divorced on 17 September 1986.

On 7 October 1988, the applicant and his second spouse were married. They divorced on 18 December 2006 and on 23 December 2006, she submitted a request to deem SBP coverage to the Defense Finance and Accounting Services Center (DFAS), and the election for former spouse coverage was established.

AIR FORCE EVALUATION:
The SAF/MRB Legal Advisor states that the panel should not grant the application in this case. Despite the September 1986 divorce decree directing the applicant make the election, federal law makes the election unavailable when the deemed election is not timely effected. The applicant has not explained why he signed the second divorce decree making his second former spouse the SBP beneficiary if he believed that his first former spouse should be the SBP beneficiary. Moreover, at the time of his marriage to his second spouse he knew that his first spouse was not the SBP beneficiary because he had the post-divorce SBP premiums refunded. If there were not a competing eligible beneficiary, or there was notarized consent of the current spouse, the legal advisor would recommend correcting the record, but there is a competing spouse and no consent. Accordingly, no extraordinary circumstances here that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the applicant's second former spouse of benefits to which she is legally entitled. If the Board is inclined to grant the request, it should not reach a final decision until the view of the current spouse is solicited and considered.

The complete SAF/MRB legal Advisor evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 18 November 2008, a copy of the evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). 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 timely filed.
3.	Insufficient	relevant	evidence	has	been	presented	to demonstrate the existence of error or injustice.	We took notice
1.	
of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the SAF/MRB Legal Advisor that the applicant has provided no evidence of an error of injustice in this case. Further, since there is no evidence that the applicant submitted a valid election for former spouse coverage for his first former spouse within the established time period, and the courts have subsequently directed that SBP coverage be maintained on his second former spouse, and a valid election for former spouse coverage was accomplished, it is our belief that providing the applicant the relief he is requesting is now a matter for the courts to resolve. Therefore, absent persuasive 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 the evidence presented did not demonstrate the existence of an 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 this application in Executive Session on 10 February 2009, under the provisions of AFI 36-2603:

, Panel Chair, 
Member
, Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-02910 was considered:

Exhibit A.	DD Form 149, dated 14 July 2008, w/atchs. Exhibit B.	Letter, SAF/MRB Legal Advisor,
dated 12 November 2008.
Exhibit C.	Letter, SAF/MRBC, dated 18 November 2008.

Panel Chair