RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05699 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: She be named as former spouse under the Survivor Benefit Plan (SBP). ________________________________________________________________ _ APPLICANT CONTENDS THAT: Pursuant to the Judgment of Absolute Divorce decree, dated 11 Feb 11, that reflects she was designated as the former spouse beneficiary for her ex-husband’s SBP annuity, she should not be denied eligibility for this benefit. Counsel notes that the judgment was signed on 11 Feb 11; however, it was not entered until 10 Mar 11. Under Maryland law, a divorce decree is not valid until it has been entered by the Clerk of the Court. In this case, the applicant’s Judgment of Absolute Divorce was not a valid document until it was entered by the Clerk of the Court on 10 Mar 11. In support of her request, the applicant provides a copy of a letter from counsel, a copy of a letter from DFAS, a copy of her Judgment of Absolute Divorce decree, a copy of a certified letter from counsel, a copy of DD Form 2656, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Requests for Deemed Election, and mail receipts. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 5 Nov 13, the SAF/MRB Legal Advisor sent the applicant’s counsel an email requesting an affidavit be provided to confirm that the former member has not remarried. As of this date, this office has received no response. The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is at Exhibit C. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the applicant and the member married on 23 Nov 73, and divorced on 11 Feb 11. Prior to the member’s retirement on 1 Jul 97, he elected spouse and child SBP coverage based on full retired pay. Although unenforceable, the divorce decree states that the applicant is entitled to full survivor annuity benefits related to the member’s pension with the Air Force and “shall pay for the cost of said benefit for her share of the monthly annuity.” SBP premiums continue to be deducted from the member’s retired pay and DFAS-CL records continue to erroneously reflect the applicant’s name and date of birth (9 Mar 44) as the eligible spouse beneficiary. They cannot confirm if either party has remarried. However, it would be appropriate to enforce the parties’ court-ordered agreement to continue SBP coverage, an asset the court apparently intended to award, on the applicant’s behalf. In the interest of justice and absent a competing claimant, DPFFF recommends correcting the record to show the applicant submitted a valid request that former spouse SBP coverage based on full retired pay was deemed effective 12 Feb 11. The complete DPFFF evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel submits the applicant’s acceptance of the DPSIAR recommendation. In addition, the applicant accepts the responsibility for the cost of the SBP per the divorce decree, to include retroactive SBP costs. The applicant’s complete submission, 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 error or injustice. While we do not take issue with the applicant’s assertion that her divorce decree ordered her former husband to continue coverage for her under 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. We note the Air Force office of primary responsibility recommends approval. However, since the period of time allowed by law to make a deemed election for former spouse coverage has already passed, the only way the Board can grant the applicant’s request is if an affidavit is provided to confirm that the former member has not remarried. Consequently, in the absence of evidence to the contrary, we find no basis to recommend granting relief at this time. However, the Board is willing to reconsider the applicant’s request if she provides the required affidavit as evidence proving the former member has not remarried. ________________________________________________________________ _ 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-2012-05699 in Executive Session on 30 Sep 13 and 14 Jan 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Dec 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFFF, dated 11 Mar 13. Exhibit D. Letter, SAF/MRBR, dated 22 mar 13. Exhibit E. Letter, Counsel, dated 4 Apr 13. Panel Chair