RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03731 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: Her late husband’s Survivor Benefit Plan (SBP) election be changed to former spouse coverage. APPLICANT CONTENDS THAT: She and the deceased were married upon his retirement in Jul 95. Their divorce was finalized 9 Oct 98 and the decree stated that she would remain the SBP beneficiary. The divorce decree order her ex-spouse to maintain SBP coverage for her. The Board should waive her untimely application because she was not made aware of the procedures to submit a deemed election. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the divorce decree, dated 9 Oct 98, the applicant and the decedent divorced. According to the death certificate issued 8 May 13, on 18 Feb 13, the decedent died with no surviving spouse. The applicant provided a marital status affidavit, dated 21 Aug 14 (Exhibit E). AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. Absent evidence of a competing claimant, it would be appropriate to correct the decedent's record to reflect former spouse coverage based on full retired pay [sic] under the SBP, naming the applicant as the former spouse beneficiary, was established effective 10 Oct 98. Approval should be contingent upon recovery of all applicable SBP premiums. On 14 Feb 84, the applicant and the decedent were married. The decedent elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Jul 95 retirement. The parties divorced on 9 Oct 98, and the divorce decree ordered the member to maintain the deceased as the SBP beneficiary. There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the first year following their divorce as the law requires. The youngest child lost eligibility due to age effective 1 Jul 04. DFAS-CL records continued to reflect the applicant’s name and date of birth as the eligible spouse beneficiary and premiums continued to be deducted from the decedent's retired pay until his 18 Feb 13 death. There is no evidence either party remarried, and accordingly, there is no competing claimant. The complete DPFFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant agrees with the recommendation in the advisory opinion that the decedent’s SBP election be changed from spouse to former spouse coverage on her behalf, based on full retired pay. The decedent’s intentions are clear in the divorce decree and evidenced by the fact that he allowed premiums to be deducted from his retirement pay in her name up until his death. The decedent’s complete response, with attachment, is at Exhibit D. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPFFF notes that in their original evaluation, the recommended relief was incorrectly stated. Therefore, DPFFF revised their opinion and now states that absent evidence of a competing claimant, it would be appropriate to correct the decedent's record to reflect former spouse coverage based on a reduced level of retired pay under the SBP vice full retired pay, naming the applicant as the former spouse beneficiary effective 10 Oct 98. Approval should be contingent upon recovery of all applicable SBP premiums. The complete DPFFF evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant acknowledges the change to the advisory opinion to recommend the decedent’s record be corrected to reflect former spouse coverage based on the previous reduced level of retired pay. However, she looks forward to the conclusion of her application and will rely on the Board’s decision in this matter. The applicant’s complete response is at Exhibit H. 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. Having carefully reviewed this application, we agree with the revised recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Accordingly, we recommend the former member’s record be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEDENT be corrected to show that on 10 Oct 98, he elected to change his Survivor Benefit Plan (SBP) coverage to former spouse coverage, based on a reduced level of retired pay, naming the APPLICANT as the former spouse beneficiary. The following members of the Board considered AFBCMR Docket Number BC-2013-03731 in Executive Session on 09 Oct 14 and 1 Dec 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Jul 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 23 Sep 13. Exhibit C. Letter, SAF/MRBR, dated 29 Oct 13. Exhibit D. Letter, Applicant, dated 13 Nov 13. Exhibit E. Affidavit, Applicant, dated 21 Aug 14. Exhibit F. Letter, AFPC/DPFFF, dated 28 Oct 14. Exhibit G. Letter, SAF/MRBR, dated 4 Nov 14. Exhibit H. E-Mail, Applicant, dated 19 Nov 14. SECRETARY OF THE AIR FORCE WASHINGTON MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD JUL 2 2 2015 FOR CORRECTION OF MILITARY RECORDS (AFBCMR) SUBJECT: AFBCMR Docket Number: BC-2013-03731 I have carefully reviewed the AFBMCR application submitted by ("Applicant"), former spouse of ("Member") and the contents of the case file to include the AFPC Advisory and applicant's rebuttal. While I am sympathetic to the applicant's plight, I find that the AFBCMR cam10t adequately investigate and rule on such a matter when there are competing interests, and granting relief to the applicant would result in prope1ty being taken away from another party whose interests cannot be adequately represented in the AFBCMR process. In fact, the AFBCMR has consistently refused to grant relief to applicants when doing so would deprive another party of a benefit to which they are legally entitled, as could be the case here. The court, not the AFBCMR, is the appropriate venue to weigh competing interests while ensuring the legal interests of all parties are being protected, and this case has pertinent matters relating to the decedent's estate that are best left to the State courts to resolve rather than the Board. Therefore, I decline to adopt the recommendation of the panel. This action does not preclude the applicant from seeking reconsideration based on newly discovered relevant information or, better yet, from seeking redress through the approp1iate court.