RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04556 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 within a year of the divorce. In support of her request, the applicant provides a copy of the 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 former member were married on 2 December 1967 and divorced on 4 March 1998. The service member retired on 1 July 1988. On 23 May 2012, the applicant and the former member were provided advisories (Exhibit D) prepared by 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. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force which is at Exhibit B. ___________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation because the application involves two potential SBP beneficiaries. Prior to the service member’s retirement on 1 July 1988, he elected spouse only SBP coverage based on full retirement pay. The parties’ separation and property settlement agreement, which was incorporated in the divorce decree ordered that the applicant remain as the SBP beneficiary. There is no evidence either party submitted a request to change spouse coverage to former spouse coverage within the first year following the divorce. However, the member did not request the applicant be removed from his SBP spouse coverage. On 17 December 2001, the applicant remarried. By law, the new spouse became the eligible spouse beneficiary on the first anniversary of their marriage. The complete DPSIAR evaluation is at Exhibit B. ___________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The former member wrote on behalf of his former spouse stating he elected the applicant as the SBP beneficiary upon his retirement and was unaware another declaration was to be made within a year of the divorce. He is remarried, however, that marriage will end in divorce also. After the divorce is finalized, he will have her removed from the Defense Enrollment Eligibility Reporting System (DEERS). He believes the applicant is the rightful and only beneficiary of his SBP and he never intended to transfer it to his current wife. The applicant’s complete response, with attachment, 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. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries. We took notice of the applicant’s complete submission in judging the merits of the case. While we note the divorce decree awarded the applicant continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. Since it appears the former service member’s second spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the applicant the SBP benefit. While we note the former service member’s certification that he intended the applicant remain the SBP beneficiary, unless proof of a timely election of former spouse coverage is provided, the second spouse relinquishes her entitlement or the former member executes the appropriate steps required to remove his second spouse as beneficiary due to their dissolution of marriage, we find no basis to grant the applicant’s request. _____________________________________________________________ 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-2011-04556 in Executive Session on 6 September 2012, under the provisions of AFI 36-2603: The following documentary evidence pertaining to BCMR Docket Number BC-2011-04556 was considered: Exhibit A. DD Form 149, dated 14 Nov Aug 11, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 28 Dec 11. Exhibit C. Letter, SAF/MRBR, dated 6 Jan 12. Exhibit D. Letter, AFBCMR, dated 23 May 12, w/atchs. Exhibit E. Letter, Former Member, dated 4 Jun 12, w/atch.