RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02160 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he made an election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: His retired pay distribution and SBP coverage do not correctly implement the instructions in the divorce decree. In support of his request, the applicant submits copies of his divorce decree, marriage certificate, DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, DD Form 2894, Designation of Beneficiary Information, retired account statements and letters to and from the Defense Finance and Accounting Service (DFAS). The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and former spouse were married on 3 September 1965 and he declined SBP coverage. The applicant elected full spouse only SBP coverage during the open enrollment authorized by Public Law (PL) 101-189 (1 April 1992 thru 31 March 1993). The parties divorced on 27 March 2007 and incorporated in the divorce decree, the applicant was ordered to continue SBP on his former spouse. Neither party submitted a valid election change during the required time limit following their divorce. On 20 October 2007, the applicant remarried. On 19 June 2009, he notified DFAS of the change in his marital status and requested DFAS change his arrears of pay (AOP) beneficiary to his current spouse. In addition to the AOP change, DFAS updated the applicant’s spouse only SBP beneficiary to reflect his current spouse, as the law required. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR states it is forwarding this request without a recommendation because it involves two potential SBP beneficiaries. The complete AFPC/DPSIAR evaluation is at Exhibit C. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The SAF/MRB Legal Advisor recommends denial. The Legal Advisor states that despite the court order, federal law makes the election unavailable when the deemed election is not timely effected. If there were not a competing eligible beneficiary, or there was notarized consent of the current spouse, he would recommend correcting the record, but there is a competing spouse and no consent. He sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in this manner will deprive the current spouse of benefits to which she is legally entitled. The complete SAF/MRB Legal Advisor evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the evaluations were forwarded to the applicant on 13 December 2010 for review and comment within 30 days. As of this date, no response has been received by this office. (Exhibit E). _________________________________________________________________ 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 of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or an 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 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 AFBCMR Docket Number BC-2010-02160 in Executive Session on 25 January 2011, under the provisions of AFI 36-2603: documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Apr 10, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPSIAR, dated 2 Aug 10. Exhibit D. Letter, SAF/MRB Legal Advisor, dated 17 Oct 10. Exhibit E. Letter, AFBCMR, dated 13 Dec 10, w/atchs.