RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04458 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His former spouse be renamed as the designated former spouse Survivor’s Benefit Plan (SBP) beneficiary. APPLICANT CONTENDS THAT: His former spouse was to remain as the beneficiary for SBP per the Property Settlement Agreement. He and his former spouse were married on 15 Aug 70. He retired on 1 Dec 89 and they divorced on 31 Mar 92. He remarried on 4 May 01 and was divorced on 11 Dec 03. The divorce decree does not provide that she be designated as the SBP beneficiary. The parties agreed that the marriage did not coincide with his military service and she was not entitled to any of his military retired pay. His former spouse has been receiving a portion of his military retirement and remained eligible to be the beneficiary of his SBP up until her subsequent marriage. In 2006 [sic], he notified the Defense Finance and Accounting Service (DFAS) of her remarriage before age 55 and requested that she be removed as the beneficiary. On 20 Dec 11, his former spouse divorced. Although her remarriage before age 55 made her ineligible to remain as the beneficiary, her subsequent divorce reinstated her eligibility as the beneficiary of the SBP. In Dec 12, the applicant discovered his second wife was listed as the beneficiary of his SBP. On 15 Jan 13, he attempted to take action to correct this. His Retiree Annuity Statement (RAS) now indicates his current spouse as the SBP beneficiary. This designation is incorrect. The premiums were paid for the SBP, the decision to designate his former spouse as the SBP beneficiary will have no financial impact and serves only to correct the injustice in this case. He always intended that his former spouse would be the SBP beneficiary. He made a mistake of law when he contacted DFAS to have her removed when she remarried before age 55. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information contained in the Defense Enrollment Eligibility Reporting System (DEERS) database, the applicant married his first spouse on 15 Apr 70. He elected spouse and child coverage based on full retired pay prior to his 1 Dec 89 retirement. The Property Settlement Agreement, incorporated in the divorce decree provided by the applicant states they were married on or about 15 Aug 70. The parties divorced on 31 Mar 92 and the Property Settlement Agreement, incorporated in the divorce decree, stated the applicant would continue to maintain the SBP. The applicant’s former spouse remarried on 15 May 99 prior to her 55th birthday and divorced on 20 Dec 11. Per the applicant’s letter dated 17 Jun 99, he requested DFAS-CL suspend SBP coverage for his former spouse due to her remarriage before age 55. On 4 May 01, the applicant married his second spouse and divorced on 3 Dec 03. According to the Certificate of Marriage provided by the applicant, he married his third and current spouse on 7 Dec 04. AIR FORCE EVALUATION: AFPC/DPFFF defers making a recommendation as there are other potential SBP beneficiaries. DPFFF states that former spouse coverage is suspended if the former spouse remarries before age 55. Costs cease effective the first day of the month after the month of remarriage. However, eligibility and premiums are reinstated effective the first day of the month after the disqualifying marriage terminates. There is no evidence either party submitted a valid former spouse election within the one-year period following their divorce as the law requires. The applicant’s former spouse remarried prior to her 55th birthday (5 Oct 50) and on 17 Jun 99, the applicant requested DFAS-CL suspend SBP coverage due to her remarriage. DFAS-CL suspended the spouse’s portion of the SBP coverage retroactive to the date of their divorce. DFAS-CL records erroneously reflect the applicant’s second former spouse as the eligible spouse beneficiary. The applicant remarried on 19 Dec 04 [sic] but did not notify DFAS-CL of the change in his marital status nor requested spouse coverage be established on her behalf. Nevertheless, the third spouse became the eligible spouse beneficiary on the first anniversary of their marriage by law. A complete copy of the DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states the date of marriage for the applicant and his former spouse is incorrect in the advisory opinion. The correct date of marriage is 15 Aug 70. The date of his subsequent marriage is also incorrect. The correct date of marriage is 7 Dec 04. It is their understanding his current spouse is listed as the SBP beneficiary. She is not a potential SBP beneficiary as she was not married to the applicant during any portion of his military service. Neither the applicant nor his current spouse dispute the fact that his first former spouse is the rightful beneficiary of the SBP. The applicant’s complete submission 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, the applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. Neither the applicant nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage. In the absence of evidence that there was a "deemed election" by the applicant within one year after the divorce, the Board assumes the applicant’s current spouse gained entitlement to the benefit by operation of law. Although the AFBMCR has the authority, it should not rule on a dispute between claimants to a benefit that only one of them can receive. Furthermore, it is not appropriate for the Board to adjudicate such a dispute since that task is more properly left to the courts. However, if the applicant’s current spouse submits a notarized statement relinquishing her entitlement to the SBP, the Board may be willing to reconsider the applicant’s appeal in consideration of this evidence. In view of the foregoing, we find no basis to recommend granting the relief sought in this application. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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-2013-04458 in Executive Session on 29 Dec 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 Jan 14, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Memorandum, AFPC/DPFFF, dated 14 Apr 14. Exhibit D. Letter, SAF/MRBR dated 25 Apr 14. Exhibit E. Letter, Applicant, dated 21 May 14.