RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02019 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: After his divorce negotiations in 2002, he went to Tinker Air Force Base to ask about SBP, however, he was not informed about the DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage. In fact, he was told that both his former and subsequent spouse could be the recipients of SBP. Upon his remarriage in 2005, he tried to add his current spouse and was told only one person could receive SBP. He was also told that it was too late to designate his former spouse because it had been more than two years since his divorce. In addition, there was no mention of the DD Form 2656-1 or the possibility of a correction of records. Assuming he had no other option, he designated his current wife as the recipient of SBP. In a recent conversation with his former spouse, she pointed out he was in contempt of the court order and he realized he needed to do something to correct the situation. Fortunately, a retired master sergeant informed him that only one person could receive SPB and that he should complete the DD Form 2656-1 to comply with the court order. In support of his request, the applicant provides copies of his divorce decree, and his DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The member and applicant were married on 9 March 1969 and he elected child and spouse SBP coverage based on full-retired pay prior to his retirement on 1 August 1990. The parties divorced on 26 July 2002 and in the Military Pension Division Order, the applicant was ordered to maintain his former spouse as the sole primary 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 required. On 1 January 2005, the applicant married his current spouse and on 21 January 2006, he requested Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) to add his current spouse as the SBP beneficiary. DFAS-CL complied and updated his records and he was issued a refund of overpaid SBP premiums. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates that since the request involves two potential SBP beneficiaries, no recommendation is provided. The complete DPSIAR evaluation is at Exhibit C. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The SAF/MRB Legal Advisor recommends denial. Despite the July 2002 court order directing the member to make the election, federal law makes the election unavailable when the deemed election is not timely effected. The applicant’s ignorance or confusion on the election requirements and options does not prevent the law from having its congressionally intended effect. The applicant’s story is clear proof that this program can be confusing even to those who administer it. Nevertheless, Congress has specifically chosen to address these situations with a clear rule, which limits the Air Force Board for Correction of Military Records’ (AFBCMR) ability to provide a proper remedy. If there were not a competing eligible beneficiary, or there was notarized consent of the current spouse, the MRB Legal Advisor would recommend correcting the record, but there is a competing spouse and no consent. Accordingly, the MRB Legal Advisor sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact that correcting the record in the manner requested will deprive the member’s current spouse of benefits to which she is legally entitled. A copy of the SAF/MRB evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION The applicant provides a notarized statement from his current spouse to correct his record and restore SBP benefits to his former spouse per the court order. The applicant’s response, with attachment, is at Exhibit F. _________________________________________________________________ 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. Sufficient 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. After thoroughly reviewing the circumstances of this case, it is our opinion that the former spouse should receive the SBP annuity at the reduced level of retired pay to comply with the divorce decree and settlement agreement awarding the asset to her by the court. In this regard, we note the applicant’s current spouse has provided a notarized statement relinquishing her entitlement to the SBP. We are persuaded by the evidence presented that it was the applicant’s intent to provide his former spouse the SBP annuity and satisfied that his current spouse is fully aware she is relinquishing her entitlement to the annuity. Therefore, we recommend the applicant’s records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 1 August 2002, he elected to change his SBP election from "spouse" coverage to "former spouse coverage" based on a reduced level of retired pay, naming his former spouse as the eligible beneficiary. _________________________________________________________________ The following members of the Board considered Docket Number BC-2010- 02019 in Executive Session on 28 September 2010 under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 May 2010, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSIAR, dated 30 Jun 10. Exhibit D. Letter, SAF/MRB Legal Advisor, dated 3 Aug 10. Exhibit E. Letter, AFBCMR, dated 11 Aug 10, w/atchs. Exhibit F. Applicant’s Response, dated 30 Aug 10, w/atch. AFBCMR BC-2010-02019 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 1 August 2002, he elected to change his SBP election from "spouse" coverage to "former spouse coverage" based on a reduced level of retired pay, naming as the eligible beneficiary.