RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01362 COUNSEL: NONE EARING DESIRED: NO APPLICANT REQUESTS THAT: His status of his Survivors Benefit Plan (SBP) beneficiary be changed from “Spouse” to “Former Spouse.” APPLICANT CONTENDS THAT: The information provided during his retirement out-processing briefing was inaccurate and misleading. He was told the only time his SBP election could be changed was in the event of divorce, marriage or death of the listed beneficiary. They did not indicate that a change was mandatory after one of these events. Shortly after their divorce in 1992, his ex-wife took a copy of their divorce decree to their local base legal office to update their retirement pay and SBP. His ex-wife was informed that advice could only be provided to the service member, not an ex- spouse. Their divorce decree directed SBP was to remain in force (payable to his ex-wife) and since the beneficiary was not changing, there did not appear to be any reason to take action. If he had known that there was a requirement to file a change in status of the beneficiary for SBP within a year of the event [divorce], he would have done so. SBP deductions have been collected every month since his retirement; almost 22 of those years were after their divorce. At this point, the only fair and corrective action is to correct his record to show that the status of the beneficiary is his “ex-wife” instead of “wife.” In 1988 and 1992 military representatives had an opportunity to avoid this situation by providing accurate information, but that did not happen. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: In 1988, according to information provided by the applicant, he retired from active duty. On 7 Apr 92, according to information provided by the applicant, the divorce decree, issued by the State of Washington, directed the wife shall receive 45 percent of the applicant’s Air Force retirement and SBP benefits shall remain in effect for so long as the applicant is eligible under the retirement plan. On 8 Apr 14, SAF/MRBR sent the applicant a request to return a notarized SBP marital status affidavit and SBP release of benefits affidavit within 30 days. As of this date, the applicant has not responded. On 4 Sep 14, SAF/MRBR sent the applicant a second request for the affidavits previously requested on 8 Apr 14; in particular, the notification from the current spouse that she is relinquishing the benefits to the former spouse. As of this date, the applicant has not responded. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF does not make a recommendation. According to Defense Enrollment Eligibility Reporting System (DEERS) records, the applicant and former spouse were married on 25 Jun 71 and he elected spouse and child SBP coverage based on full retired pay prior to his 1 May 88 retirement. The youngest child lost eligibility in July 2004 due to age. The parties divorced on 1 Jan 92. There is no evidence either party submitted a valid former election within the one-year period following their divorce as the law requires. The applicant and his second spouse married on 29 Sep 00, but did not notify the Defense Finance and Accounting Service of the change in his marital status or request that spouse coverage be established on his new wife’s behalf. The applicant’s retired pay records continue to reflect his first spouse’s name and date of birth as the eligible spouse beneficiary; however, by operation of law, the new wife became the eligible SBP spouse beneficiary on the first anniversary of their marriage. The applicant’s request cannot be fulfilled without the applicant obtaining notarized signatures of the requested affidavits, particularly, the notification from the current spouse that she is relinquishing the benefits to the former spouse. Based on previous guidance, there is no recommendation because this case involves two potential beneficiaries. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant is only asking for the status of is beneficiary to his SBP election made in 1988 be changed from “Spouse” to “Former Spouse.” SBP premiums have been collected for more than 26 years, including 22 years since his divorce. Prior to his subsequent marriage, his second wife was aware his former spouse was entitled to 45 percent of his retirement pay and his SBP in accordance with his divorce decree from the state of Washington. His failure to comply with the law regarding SBP in this case is largely the result of improper processes and procedures performed by Air Force briefers. 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; to include his rebuttal response, however, after a thorough review of the available evidence of record, it is our opinion the requested relief should be denied. We understand the applicant’s situation; however, the wife from the 29 Sep 00 marriage became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. This information has been communicated to the applicant and multiple requests to obtain the appropriate release of benefit forms have gone unanswered by him. The AFBCMR has long been advised by legal counsel that it should only consider granting cases involving more than one claimant to the same benefit when extraordinary circumstances are present such as clear and unmistakable evidence that a deemed election was made or the current spouse provides a notarized statement voluntarily relinquishing their right to the benefit. There is no evidence provided that supports that extraordinary circumstances exist in this case. 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-2014-01362 in Executive Session on 6 May 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Mar 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 23 May 14. Exhibit D. Letter, SAF/MRBR, dated 28 Jul 14.