RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04466 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: SBP premium payments were made on her behalf by her former spouse in accordance with their divorce decree dated 17 Dec 2002. Former spouse designation was not made within one year as required; however, she is requesting that this designation be changed due to her former spouse’s terminal illness. SBP premium payments were made prior to and after their divorce in 2002. She is the legal beneficiary of this insurance and respectfully requests the Board make the appropriations to insure SBP payments be made to her in accordance with the agreement set forth in the divorce paper decree, dated 17 Dec 2002 and her former spouse’s wishes. She was initially made aware of this error in 2009. At that time, she asked her former spouse to make the necessary corrections. She was under the impression this error had been corrected, but received confirmation on 1 Nov 2011 from the Defense Finance and Accounting Service (DFAS) that it had not been corrected. In support of her request the applicant provides copies of her marriage license, divorce decree, doctor's letter, and electronic communiqués between her former spouse and herself. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The member and the applicant were married on 10 Nov 1961, and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Jun 1987 retirement. There were no eligible children effective 1 Jul 1992. The parties divorced 13 Dec 2002. The divorce decree contained the member's agreement to pay for the "spousal benefit insurance." There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. However, the member did not request the applicant be removed as his SBP spouse beneficiary and monthly premiums continued to be deducted from his retired pay until his 3 Nov 2011 death. The member's SBP information maintained in the retired pay system continues to reflect the applicant's name and date of birth (7 Nov 1943) as the eligible spouse beneficiary. The member re-married on 25 Feb 2003. By law, his current spouse became the eligible spouse beneficiary on the first anniversary of their marriage. There is no indication his current spouse has submitted a claim for payment of the $1,770 monthly SBP annuity. _______________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSIAR states that based on AFBCMR guidance, dated 18 Mar 2004, they are forwarding this request without a recommendation because it involves two potential SBP beneficiaries. The divorce decree contained the member's agreement to pay for the "spousal benefit insurance." There is no evidence that either party submitted an election to change spouse coverage to former spouse coverage within the first year following their divorce. However, the member did not request the applicant be removed as his SBP spouse beneficiary and monthly premiums continued to be deducted from his retired pay until his 3 Nov 2011 death. The member's SBP information maintained in the retired pay system continues to reflect the applicant's name and date of birth as the eligible spouse beneficiary. The member remarried on 25 Feb 2003. By law, his current spouse became the eligible spouse beneficiary on the first anniversary of their marriage. There is no indication his widow has submitted a claim for payment of the $1,770 monthly SBP annuity. The complete DPSIAR evaluation is at Exhibit B. In accordance with the SAF/GCM Legal Opinion 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 on the case or pushes the AFBCMR to make a determination in the case. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She and her deceased former spouse were married on 10 Nov 1961 and divorced on 13 Dec 2002. The applicant provided a sworn affidavit which states in part that their divorce judgment and agreement included a provision that her former spouse continue payments for the spousal benefit insurance. These payments continued until the time of his death on 3 Nov 2011. She continues to be reflected as the SBP beneficiary. Her former spouse should have submitted an election to change her status from spouse to former spouse within the first year following their divorce. However, neither she nor her former spouse was aware of this requirement until 2009. Her former spouse has maintained, via telephone conversations and email correspondence, that he intended for her to receive the SBP and she would never be replaced as the eligible spouse beneficiary. She has not married since their divorce and is not presently married. Her complete response, with attachments, is at 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case, to include her rebuttal response; however, we accept the determination of the SAF/CGM Legal opinion and adopt its rationale as the basis for our conclusion the applicant has not demonstrated that the extraordinary circumstances exist that are 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 deceased former husband to continue coverage for her under the 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 deceased member’s widow gained entitlement to the benefit as an operation of law. If the deceased member’s widow provides a notarized statement relinquishing her potential entitlement to the SBP annuity, the Board may be willing to reconsider the applicant’s appeal in consideration of the new evidence. Otherwise, the applicant’s only recourse is to return to a court of law to have the issue decided. Therefore, in the absence of 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 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 this application in Executive Session on 6 Sep 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in AFBCMR BC- 2011-04466: Exhibit A. DD Form 149, dated 2 Nov 2011, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 15 Dec 2012 Exhibit C. Letter, SAF/MRBR, dated 29 Dec 2012. Exhibit D. Letter, SAF/GCM, dated 16 Oct 2006. Exhibit E. Letter, SAF/MRBC, dated 16 Aug 2012. Exhibit F. Letter, Applicant, dated 28 Aug 2011 w/ atchs.