RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03921 (DECESASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: The decedent’s Survivor Benefit Plan (SBP) election be changed to former spouse coverage. APPLICANT CONTENDS THAT: The decedent did not realize that he had to change his record to reflect former spouse coverage based on the divorce decree. He continued to pay the premiums each month to make sure that she would be taken care of. Neither of them remarried. The Board should find it in the interest of justice to waive the excuse to timely file because the decedent had problems with alcohol and possibly forgot. Also, the Air Force had the wrong address. In support of her request, the applicant provides a personal statement, copies of her marriage license, divorce decree, decedent’s death certificate, and DD Form 214, Certificate of Release or Discharge from Active Duty, issued 31 Mar 93 and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the death certificate, provided by the applicant, the decedent died on 22 Jul 13 and had not remarried. AIR FORCE EVALUATION: AFPC/DPFFF recommends granting relief. Absent evidence of a competing claimant, it would be appropriate to correct the decedent's record to reflect former spouse coverage based on the previous reduced level of retired pay under the SBP, naming the applicant as the former spouse beneficiary, which was established effective 3 Dec 04. Approval should be contingent upon recovery of all applicable SBP premiums. On 2 Oct 71, the applicant and the decedent were married. The decedent elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Apr 93 retirement. The parties divorced on 2 Dec 04, and in the Agreement, incorporated in the divorce decree, the decedent agreed to pay SBP premiums currently in place for the benefit of the applicant. 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. 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 22 Jul 13 death. There is no evidence either party remarried, and accordingly, there is no competing claimant. The complete DPFFF evaluation is attached at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through her Member of Congress, she reiterates her original contentions that the decedent wanted her to have the SBP annuity. In further support of her request, the applicant provides a notarized affidavit confirming that she is not married and to her knowledge the decedent did not remarry. The applicant’s complete response, with attachments, is at Exhibit D. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 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. Therefore, we recommend the applicant’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 FORMER MEMBER, be corrected to show that on 3 Dec 04, he elected to change his Survivor Benefit Plan (SBP) spouse only 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-2013-03921 in Executive Session on 9 Oct 2014 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 15 Aug 13, w/atchs. Exhibit B. Memorandum, AFPC/DPFFF, dated 17 Oct 13. Exhibit C. Letter, SAF/MRBR, dated 8 Nov 13. Exhibit D. Electronic Mail, Applicant, dated 12 Jan 14, w/atch. Exhibit E. Letter from Congressman, dated 24 Mar 14, w/atch. Exhibit F. Affidavit, Applicant, dated 21 Aug 14. SECRETARY OF THE AIR FORCE WASHINGTON JUL 2 2 2015 MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR) SUBJECT: AFBCMR Docket Number: BC-2013-03921 I have carefully reviewed the AFBMCR application submitted by XXXXXXXX ("Applicant"), former spouse of XXXXXXX ("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 cannot adequately investigate and rule on such a matter when there are competing interests, and granting relief to the applicant would result in property being taken away from another party whose interests cannot be adequately represented through 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 appropriate court. 1