RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00432 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to reflect he elected child only coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: He submitted a request for child only coverage under the SBP. His wife concurred with the election; however, his request was declined because his wife’s birth date was erroneously entered for her signature date. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who retired on 1 Apr 11. The remaining relevant facts are contained in the letters prepared by the Air Force offices of primary responsibility (OPR) which are at Exhibits B and C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR believes there are negative implications in either granting or denying relief. The applicant elected child only SBP coverage based on full retired pay prior to his 1 Apr 11 retirement. His wife concurred in the election; however, she erroneously entered her date of birth when she dated her signature, therefore, invalidating the election. Consequently, DFAS-CL established spouse and child coverage based on full retired pay to comply with the law. Upon receipt of the applicant's request, his spouse was contacted and provided a supplementary concurrence statement containing detailed information about child only coverage, which she signed in the presence of a notary public on 13 Jan 12. However, on 29 Mar 12, the member contacted the SBP counselor at Kirtland stating he was in the process of getting a divorce. He requested a copy of his spouse’s supplementary concurrence statement to prove to the court that she should not become entitled to SBP coverage as his former spouse. The applicant was provided a copy of his spouse’s 13 Jan 12 concurrence statement; however, a copy of the pending divorce decree or marital settlement agreement (MSA) is not yet available as the parties divorce is yet to be finalized. The complete AFPC/DPSIAR evaluation is at Exhibit B. SAF/MRB Legal Advisor recommends denial of the applicant’s request as this case presents the Board with competing interests between the former spouse and the applicant. Given the competing interests and the absence of a valid, timely election, the Board should follow the long standing SAF/GCM guidance not to correct an existing record when "the result would be unfavorable to another person eligible to seek relief from the BCMR.” The applicant’s 28 Jun 12 MSA states the "Husband shall elect Wife as Former Spouse (sole) Beneficiary of Husband's SBP at the maximum amount." The MSA further states, "Wife shall remain Husband's irrevocable former spouse beneficiary unless she chooses otherwise with options that may apply to her during an SBP Open Season." Finally, the MSA provides, "[n]o later than fifteen (15) calendar days from the signing of the Final Decree, Husband shall complete, sign, and return to the Service Secretary all documents, papers, and forms (DD Form 2656 or other form(s) as designated by DFAS) necessary to provide SBP former spouse coverage to Wife." The applicant's signature appears on the MSA along with that of the former spouse. In cases where the service member's original election of child- only coverage is invalid, as is the case here, coverage for spouse and child is automatically established. Whatever probative value may accrue to the wife's affirmation of her original, erroneous concurrence is more than cancelled by the changed circumstances of the case, which introduces a competing interest in the SBP benefits. Therefore, there is no reason to depart from the rule established by the Air Force instruction. The complete SAF/MRB Legal Advisor evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force and SAF/MRB Legal Advisor evaluations were forwarded to the applicant on 31 Jan 13 for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ 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 however, we accept the determination of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing interests. This Board has long been advised by legal counsel that it should not, except in the most extraordinary of circumstances, correct an existing record when the result would be unfavorable to another person eligible to seek relief from the BCMR. In this respect, we note that granting the applicant’s request would deprive his former spouse of a benefit to which she is legally entitled. Therefore, 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2012-00432 in Executive Session on 13 Mar 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Feb 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 5 Apr 12 Exhibit C. Letter, SAF/MRB Legal Advisor, dated 22 Jan 13, w/atchs. Exhibit D. Letter, AFBCMR, dated 31 Jan 13. Panel Chair