RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03115 COUNSEL: NONE HEARING DESIRED: NO _____________________________________________________________ APPLICANT REQUESTS THAT: She be awarded her former spouse’s Survivor Benefit Plan (SBP) annuity. _____________________________________________________________ APPLICANT CONTENDS THAT: She was unaware that she had to make a deemed election for the SBP annuity. Her former spouse told her she could not receive SBP because he remarried. She later found out that was untrue. She was under the impression SBP was handled at the time of retirement and had no idea she needed to make an election following the divorce. In support of her request, the applicant provides a copy of their marriage license and their divorce decree. The applicant's complete submission, with attachments, is at Exhibit A. _____________________________________________________________ STATEMENT OF FACTS: According to the data extracted from the Air Force advisory, the applicant and the service member divorced on 8 September 2003. The service member retired on 1 May 2010. 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 C. _____________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation because the application involves two potential SBP beneficiaries. There is no evidence the applicant submitted a request for SBP coverage on her behalf following the divorce. The records show the service member remarried on 4 April 2005 and upon his retirement, he elected spouse with child coverage based on full retired pay. The complete DPSIAR evaluation is at Exhibit B. On 20 January 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 between competing beneficiaries, unless a court of competent jurisdiction has ruled in the case or pushes the AFBCMR to make such determination. _____________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 20 January 2012, for review and comment within 30 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 timely filed. 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. This Board has been previously advised 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. The applicant asserts that the divorce decree issued to her and the former member awarded her benefits under SBP. However, she has not provided any evidence that she or the former member submitted a valid former spouse election during the first year following their divorce. Further complicating this case is the fact that after he remarried, the former member elected coverage for his current spouse and child. Consequently, this is now a case involving a disputed claim between two beneficiaries. In our view, the applicant’s only recourse is to return to a court of competent jurisdiction to have the issue decided. Therefore, in the absence of such a court ruling, we must deny 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-2011-03115 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, dated 12 Aug 11, w/atchs. Exhibit B. Letter, SAF/MRB Legal Advisor, dated 27 Jan 09, w/atchs. Exhibit C. Letter, AFPC/DPSIAR, dated 30 Sep 11. Exhibit D. Letter, AFBCMR, dated 20 Jan 12, w/ atchs.