RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03972

	(FORMER	COUNSEL:  NONE
	  SERVICE MEMBER)

	(APPLICANT)	HEARING DESIRED:  NO 


________________________________________________________________

APPLICANT REQUESTS THAT:

Her former spouse’s records be corrected to reflect he made a 
timely election for former spouse coverage under the Survivor 
Benefit Plan (SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

Their divorce decree ordered her former spouse to retain her as 
the SBP beneficiary.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 9 May 14, the Board staff requested the applicant and the 
former service member provide documentary evidence of their 
current marital status.  In response, the applicant provided a 
signed notarized affidavit indicating the former service member 
is married.  The applicant failed to note if she has remarried.  
As of this date no response has been received from the former 
service member.

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of 
primary responsibility, which is attached at Exhibit B.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFFF notes the applicant elected spouse and child SBP 
coverage based on full retired pay prior to his 1 Nov 02 
retirement.  On 3 Feb 10, the parties divorced.  In the 
Separation and Property Settlement Agreement, which was 
incorporated in the divorce decree, the former service member 
agreed the applicant would receive the “former spouse annuity.”  
There is no evidence the former service member or the applicant 
submitted a valid election for former spouse coverage within one 
year following their divorce as required by law.  On 9 Feb 10, 
the former service member remarried; and on 27 Jun 11, he 
submitted a request to resume the existing level of SBP coverage 
for his current spouse.  The former service member’s records 
were updated and his current spouse is reflected as the eligible 
spouse SBP beneficiary and retroactive premiums were deducted 
from the former service member’s retired pay.  DPFFF indicates 
that based on guidance from the AFBCMR, they provide no 
recommendation since the request involves two potential 
competing beneficiaries.

A complete copy of the AFPC/DPFFF evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 13 Jan 14 for review and comment within 30 days 
(Exhibit C).  As of this date, no response has been received by 
this office.

________________________________________________________________

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 an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, based on the evidence presented, we 
cannot conclude the applicant has not demonstrated that the 
extraordinary circumstances exist that are required for this 
Board to grant relief in cases of competing SBP beneficiaries.  
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.  Consequently, the former service member’s new spouse 
gained entitlement to the benefit as an operation of law.  Since 
the applicant has failed to demonstrate that extraordinary 
circumstances existed that would override the failure of she and 
her former husband to effect the former spouse coverage, based 
on the legal guidance the Board has been given, we can only 
grant the relief sought if the former member’s current spouse 
notarized consent relinquishing the benefit.  Otherwise, the 
applicant’s only recourse is to return to a court of law to have 
the issue decided.  Therefore, in the absence of evidence to the 
contrary, we find no basis to recommend granting the requested 
relief.

________________________________________________________________

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-2013-03972 in Executive Session on 29 May 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Aug 13, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 22 Oct 13.
	Exhibit C.  Letter, SAF/MRBR, dated 13 Jan 14.
	Exhibit D.  Letters, AFBCMR, dated 12 May 14, w/atchs.
	Exhibit E.  Affidavit, Applicant, dated 20 May 14.




                                   Panel Chair
                                    
1