RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02020 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect that he elected former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP), within one year of the date of the court order. APPLICANT CONTENDS THAT: In a memorandum, through counsel, a stipulation for judgment for divorce was entered on 21 August 2009. An addendum to the stipulation was accepted by the court on 28 January 2010. It was ordered that SBP benefits be paid to her as the former spouse. However, her former spouse nor did she submit the signed DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement For Former Spouse Coverage, within the deadline. The reasoning for their failure to do so was because her former spouse assumed after he signed the original DD Form 2656, the form was sent in by her attorney. She was also under the impression that her former spouse sent in the DD Form 2656. Nevertheless, on 25 June 2013, her former spouse submitted an election for his current spouse to receive the SBP benefits. He did this only because the one year deadline to submit a voluntary election had passed. She was told by her former spouse and the Air Reserve Personnel Center (ARPC) to submit a new DD Form 2656 to Defense Finance and Accounting Services (DFAS) identifying the current spouse in order for them both to start receiving their retirement money and to later pursue the SBP remedy through the Board for Correction of Military Records (BCMR). The submission of her former spouse’s current wife as an elected RCSBP beneficiary is a violation and not in accordance with the addendum entered by the court. The RCSBP election should be changed to reflect her as the beneficiary so as to be in compliance with the courts order and the wishes of both parties. She relied on her attorney and former spouse, who also is an attorney, to have the expertise and knowledge to complete and turn in the DD Form 2656. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 25 April 2013, the former member began collecting retired pay due to reaching age 60. According to the Marriage Certificate issued by the State of California, County of Orange, and submitted by the applicant, she and the former member were married on 11 January 1975. On 21 August 2009, according to a Judgment on Reserved Issues, before the Superior Court of California, County of Solano, the applicant and former member entered a stipulation, agreeing that she would be designated as SBP beneficiary. On 27 August 2009, a DD Form 2656-1 was signed and witnessed by the former member and on 1 October 2009, the applicant’s signature was witnessed on the same form, indicating that due to divorce he was electing to change his SBP coverage to his former spouse. On 23 April 2013, a DD Form 2656-1 was signed and witnessed by the former member and on 30 March 2013, the applicant’s signature was witnessed on the same form, indicating that due to divorce he was electing to change his SBP coverage to his former spouse. On 25 June 2013, the former member initiated a DD Form 2656, which indicated he elected SBP coverage for spouse and children, based on full gross pay. Copies of the AFBCMR marital status affidavits were forwarded to the applicant and former member on 19 May 2014, to verify their marital status. The former member responded with a signed and notarized affidavit, dated 4 June 2014, which indicates that he is currently married and his former spouse is not currently married. The former member also submitted a signed and notarized declaration from his current spouse. She indicated at the time of marriage to her spouse, the SBP portion of his retirement had not been addressed by the Solano County Superior court. It is her belief that she has an entitlement to her spouse’s SBP that vested upon their marriage in 2006. She also believes the state court did not have the authority in 2009 to dispose of her SBP interest in favor of her spouse’s former spouse. She was not a party before the court when it made the Judgment on Reserved Issues that purported to give the SBP benefit that she may be entitle to at this time. The applicant responded with a signed and notarized affidavit, dated 15 July 2014, which indicates that she is not currently married and her former spouse is married. Also, she is no longer represented by the attorney on record. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibits D. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial. A spouse loses eligibility as a SBP beneficiary upon divorce. There is no provision that makes former spouse coverage an automatic benefit. According to law, the only means by which a divorced spouse can become a SBP beneficiary is if the former spouse coverage is elected by the service member or a deemed election is made on the basis of a court order. A court order by itself cannot be used to institute coverage. Although, in this case, a court document does award SBP to the applicant, a deemed election from her or her attorney on her behalf was not received by DFAS within one-year from the date of the final divorce or court document awarding SBP. While the former service member and applicant did complete a DD Form 2656-1 and signed it in 2009, it was not received at DFAS until 26 April 2013. Furthermore, upon retirement, the former service member elected SBP coverage for his current spouse and child. Nonetheless, since DFAS did not received the DD Form 2625-1 within one-year of the court document awarding former spouse SBP, the coverage for former spouse SBP cannot be awarded. A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant, through counsel, argues that the agreement made between her and her former spouse in their judgment should be honored. She was named as sole SBP beneficiary on her former spouse’s military retirement. She had a fifty percent retirement interest due to their 27 years and 10 months of marriage. The former member was prohibited of changing any life insurance, retirements, etc. Thus, without authority and in violation of two court orders, the former member changed the beneficiary to his current spouse in 2007. He was under an obligation to inform DFAS in 2010 that he elected his former spouse to continue as a survivor of his military retirement. Instead, he breached his fiduciary to her. He could, and should have allowed her to remain as a beneficiary. Although she and her attorney through DFAS had received the election form, each of them, the former member, she and her attorney should have notified DFAS within the one-year period. The form that is currently in the file represents the form that she and her attorney thought was received by DFAS, in the due course of mailing, and within this period. Under Family Code § 2337, California law provides for distribution of retirements (including death benefits) even beyond the death of the retiree. Federal law is not in conformity. The one year restriction on deemed elections by former spouses serves no legitimate purpose in cases such as this where a former spouse has been elected (and restrained from being removed), under circumstances where you received appropriate orders in a timely fashion i.e., some divorces take multiple years to complete both pre-and post-judgment. The awareness of DFAS to the election occurred when the Judgment or the DRO was furnished to DFAS within the one year period. DFAS should not have allowed any other deemed election on the part of her former spouse whose retirement benefits were still with the jurisdiction of the state court, both as to characterization (as community property) and distribution. In relation with the doctrine of comity, federal courts are required to follow California substantive law where appropriate. It is their belief that Family Code § 2337 should be followed in this instance together with the laws governing ATRO’s, the original election, the confirmation of the award of the SBP in both the Judgment on Reserved on Issues and the subsequent DRO. If her request is not granted, the trial court retains jurisdiction to require her former spouse to purchase a life insurance policy on his life equivalent to the benefit she would not receive in the event the same were lost through his conduct. Her former spouse’s naming of his current spouse was in violation of two court orders; his fiduciary duties, and should provide sufficient justification for the Board to correct his records. The applicant’s response, with attachments, is at Exhibit F. The former member argues that this is a matter of federal and military law and not California state law. He agrees that his former spouse is entitled to SBP benefits under state law. However, the only reason he feels compelled to respond is because of the significant and various inaccuracies contained in his former spouse’s attorney letter. He argues that during the hearing held on 21 August 2009, his former spouse’s attorney gave him the DD Form 2656-1. He later signed the form and sent it to his former spouse attorney’s office by the end of August 2009. His former spouse subsequently signed the form as witnessed by her attorney’s secretary on 1 October 2009. He believed that his former spouse’s attorney and/or she assumed the responsibility of timely filing the document. He never saw the document again until his former spouse sent him a copy on 23 April 2013. Nevertheless, he further argues that his former spouse, along with her attorney on her behalf, failed to notify DFAS of her election as SBP beneficiary either by filing the DD Form 2656-1 or by simply filing a DD Form 2656-10. He disputes the attorney’s accusations concerning his contact with the Air Force, regarding his marital status, from the dissolution in 2003 until approximately 2010 or 2011 when he agreed to accompany his former spouse to be entered into the Defense Enrollment Eligibility Reporting System (DEERS) and obtain a military identification card. It was not until 2013 that his current spouse was referred to in any marital capacity with the military and that is when he initially filed a DD Form 2656 in order to start retirement benefits. Even then his current spouse was simply designated as his current spouse because it was required to by the form. It is clear on the same form that he was attempting to name his former spouse as the SBP beneficiary. However, ARPC or DFAS would not accept this document. Therefore, he submitted a DD Form 2656-1, naming his former spouse as the SBP beneficiary. The advisory opinion indicated DFAS received a completed 2656-1 in April 2013 that was signed in 2009; therefore, another DD Form 2656-1 must have been received by DFAS before this one. His former spouse’s attorney does not say whose due course of mailing; however, the attorney and his former spouse had the last known possession of this important document. It would have been his or her due course of mailing. The attorney knows that he never sent the form to him because he did not say he sent it to him, as he was not his client. If for some incomprehensible reason he had in fact surrendered the signed DD Form 2656-1 to him, at the very least that document, so very important to protect his client’s SBP benefit, would have been accompanied by a cover letter containing instructions to file it with DFAS within one year. To date, neither the attorney nor his former spouse has produced such a letter. He expressed his concern, among things, about the portion of the Judgment on Reserved Issues that addressed the SBP benefit with his former spouse and that perhaps they needed to go back to court. His former spouse did not want to do that. As a result, she agreed in writing that in order to start the retirement pension benefit to which she was entitled to half, that he should go ahead and file the DD Form 2656 naming his current spouse as beneficiary. In conclusion, his former spouse attorney’s argument that there was unjust behavior on his part fails because he did not make any designation of his current wife as SBP beneficiary until 2013, and that only occurred because his former spouse agreed in writing that he should file the AF Form 2656-1, electing his current spouse as SBP beneficiary in order to start the retirement pay to which she was entitled to half. Further, he did his best to comply with the Solano County Superior Court order. In retrospect, he made the mistake of assuming that his former spouse’s attorney would adequately protect her interest in the SBP benefit by filing the DD Form 2656-1 that he sent to him shortly after the 2009 hearing. The former member’s response, with attachments, is at Exhibit G. THE BOARD CONCLUDES THAT: 1.  The applicant has exhausted all remedies provided by existing law or regulations. 2.  The application was timely filed. 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, to include the rebuttal responses, 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. While we do not take issue with the applicant’s assertion that an addendum to a stipulation of judgment for divorce ordered that SBP benefits be paid to her as the former spouse, she failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure to effect the former spouse coverage, we can only grant the relief sought if the former member’s spouse provides 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. 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-2014-02020 in Executive Session on 6 May 2015 under the provisions of AFI 36-2603: Vice Chair Member Member Due to the retirement of the Vice Chair, XXXX has agreed to sign as Acting Panel Chair. The following documentary evidence was considered. Exhibit A.  DD Form 149, dated 13 May 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Applicant and Former Member, Marital Status Affidavits, dated 19 May 2014, w/atchs. Exhibit D.  Memorandum, DFAS-JFBE/CL, dated 22 July 2014. Exhibit E.  Letter, SAF/MRBR, dated 30 September 2014. Exhibit F.  Letter, Applicant’s Rebuttal, dated 28 October 2014. Exhibit G.  Letter, Former Member’s Rebuttal, dated 24 November 2014, w/atchs. 7 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 7 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 7