RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011- 01647 COUNSEL: NONE HEARING DESIRED: NO ___________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ___________________________________________________________ APPLICANT CONTENDS THAT: She needs to set up SBP as stated in the divorce decree. She was not aware that this was separate from receiving pay and thought everything was approved in 1995. In support of her request, the applicant provides a copy of the divorce decree and a letter from her attorney to the Defense Finance and Accounting Service (DFAS). The applicant's complete submission, with attachments, is at Exhibit A. ___________________________________________________________ STATEMENT OF FACTS: Data extracted from the Air Force advisory shows the applicant and the service member divorced on 4 March 1994. Neither the applicant nor the member made a deemed election for the SBP within a year of the divorce, as required. The member remarried on 19 September 1994. He attained age 60 and began drawing retirement pay on 20 September 2009. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit B. ___________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation per AFBCMR guidance because it involves two potential SBP beneficiaries. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member married on 19 September 1994. Absent a valid election from the member, DFAS established full spouse coverage for the current spouse to comply with the law. The complete DPSIAR evaluation is at Exhibit B. On 2 February 2012, the applicant was provided advisories (Exhibit C) prepared by the SAF/MRB Legal Advisor, HQ USAF/JAA, and SAF/GCM on similar cases considered by the Board. The Board has been advised that it should not consider cases involving disputed claims unless a court of competent jurisdiction has ruled in the case or pushes the AFBCMR to make a determination in the case. ___________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 2 February 2012 for review and comment within 15 days. As of this date, this office has received no response (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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, the applicant has not demonstrated that a court of competent jurisdiction has ruled in this case or directed the AFBCMR to make a determination as required for this Board to grant relief in cases of competing SBP beneficiaries. While we do not take issue with the applicant’s assertion that her divorce decree ordered her former husband to continue coverage for her under SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. Regrettably, the applicant also failed to execute a deemed election for coverage within the one year timeframe. Consequently, the member’s spouse gained entitlement to the benefit as an operation of law. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure to effect the former spouse coverage, based on the legal guidance the Board has been given, we can only grant the relief sought if the former member’s spouse provides notarized consent relinquishing the benefit. Otherwise, the applicant’s only recourse is to return to a court of law to have the issue decided. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. ___________________________________________________________ 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-2011-01647 in Executive Session on 23 February 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dtd 29 Apr 11, w/atchs. Exhibit B. Letter, SAF/MRB Legal Advisor, dtd 20 Jan 09. Exhibit C. Letter, AFPC/DPSIAR, dtd 8 Jun 11. Exhibit D. Letter, AFBCMR, dtd 2 Feb 12.