RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04722 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased former spouse’s (decedent) records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She never received timely correspondence from the military about deemed election. The first correspondence she received about deemed election was in 1993 via her attorney. In support of her request the applicant provides copies of her marriage certificate, divorce decree and various other documents associated with her request. Her complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office at Exhibit B. _______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF does not provide a recommendation because it involves two potential SBP beneficiaries. They do note that the applicant provided a certified copy of her and the decedent's 16 Jun 1972 marriage certificate. The parties divorced on 22 Oct 1992, and although the divorce decree awarded the petitioner $520 per month in spousal support, it was silent on the SBP. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member and his widow married on 12 Sep 1996. The member was a Reservist and became entitled to receive retired pay upon attaining age 60 (4 Jul 1999). He did not immediately apply for retired pay, but he elected spouse only coverage based on full retired pay under the SBP on his widow’s behalf effective 3 May 2001. The Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) reflects his widow has not yet applied for payment of her SBP annuity (approximately $522 per month). The complete DPFFF evaluation is at Exhibit B. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He never paid child support or marital support. The county district attorney finally located him on a reservation in South Dakota. However, since he resided on the reservation they had no jurisdiction in the case. When he left the reservation he changed his name and she did not hear from him until 2012 when a family member advised her that he was dying from a brain tumor. There should be protection for the ex-spouse. She should have been made aware of this "deemed election," and now because she was not made aware, she is losing the military coverage that should be hers. This is a grave injustice. In further support of her request the applicant provides a personal statement and a copy of a letter from the Department of Social Services, Office of Child Support Enforcement. Her complete response, with attachments, is at Exhibit D. _______________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 27 Jun 2013, a copy of the SAF/GCM memorandum, dated 18 Oct 2006 was forwarded to the applicant for review and comment within 30 days. As of this date, this office has received no response (Exhibit F). _______________________________________________________________ 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. The applicant's complete submission was thoroughly reviewed and her contentions were duly noted. However, we do not find the applicant's assertions and the documentation presented in support of her request sufficiently persuasive to disturb the record. In this respect, we took note of the divorce decree that ordered the applicant to provide SBP coverage for his former spouse. However, we also note that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by the law. We are aware that in extraordinary circumstances, it is within the authority of the Board to correct a record if it finds it necessary to prevent an error or injustice. However, in this case, there are no extraordinary circumstances here that support not enforcing the deemed election requirement given the fact that a correction of the record in the manner requested would deprive the applicant's current spouse of the benefits to which she is legally entitled. If the decedent’s widow provides a notarized statement relinquishing her potential entitlement to the SBP annuity, we would 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. In view of the foregoing, and in the absence of sufficient evidence to the contrary, we conclude the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice. Accordingly, we find no 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 AFBCMR BC-2012- 04722 in Executive Session on 31 July 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-04722: Exhibit A. DD Form 149, dated 3 Oct 2012, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 2 Nov 2012. Exhibit C. Letter, SAF/MRBR, dated 26 Nov 2012. Exhibit D. Letter, Applicant, 12 Dec 2012. Exhibit E. Letter, SAF/GCM, dated 16 Oct 2006. Exhibit F. Letter, SAF/MRBC, dated 27 Jun 2013.