RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02340 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s record be corrected to reflect she made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: A Decree of Dissolution of Marriage was filed on 10 December 2009. The decree awarded her 50% of the former member’s retirement pay and it allowed her to purchase the SBP annuity. She agreed to pay for the annuity beginning September 2010, unaware that the military member had to pay the SBP premium. She contacted the legal office in January; however, because she was an ex-spouse, she was no longer entitled to legal assistance and was directed to contact her attorney. In March 2011, she called to check on the SBP annuity and was told the annuity had been stopped based on a form that should have been completed within one calendar year of the divorce. She and her attorney were unaware of this rule. On 7 July 2011, the decree was amended. The necessary forms were again provided to the military. At that time, SBP was reinstated in accordance with the amended decree of July 2011. The former member was informed of this change. Once again, she began to pay SBP premiums. She remarried on 29 July 2011. On 23 March 2013, she was informed that she had been dropped as the SBP beneficiary as the SBP premiums cannot be taken out of her portion of the former member’s retirement; although she had been paying him monthly. In a response to the second discontinuation, a second amendment to the decree was filed stating the SBP premium would be taken out of the former member’s retirement. She called several times to check on the status and was informed that her case entered into a technical review. In January 2014, she was informed her request for SBP was denied because the July 2011 amendment occurred past the one year expiration date. It is important to note that the military had already honored the amended decree, had sent a letter acknowledging such and had reinstated the SBP premiums. This indicates that the amended decree was indeed accepted as legal and binding. The letter also stated that the SBP was denied because it can only be deducted from the member's retired pay. This was the reason the military initially dropped the SPB; yet, it was never mentioned or it would have been addressed in the first decree amendment. Additionally, the second amendment corrected this issue and honored the pay was to come out of the former member’s pay. She would like to add that this has been very difficult as she had no way to get any information from the military as to whether she was enrolled or of their expectations and needs. Had she been informed of any of these specific rules, she would have complied. She thanks the Board for its time and consideration. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The former member retired from the Air Force effective 1 October 2006 in the grade of lieutenant colonel. The applicant submitted a notarized marital status affidavit, dated 12 August 2014, attesting that she and her former spouse were married on 27 June 1987 and on 9 December 2009 [sic], they divorced. She also indicated that she is currently married. The former member submitted a notarized marital status affidavit, dated 10 November 2015, attesting that he and the applicant were married on 27 June 1987 and on 10 December 2009, they divorced. He also indicated that he and his current spouse were married on 24 October 2014. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: DFAS does not make a recommendation. The former member married the applicant on 27 June 1987. He began receiving retired pay on 1 October 2006. At the time of his retirement, he provided information about his spouse and three dependent children but failed to make a valid SBP election. Additionally, there was no spouse concurrence in the declination. Accordingly, by law an election was entered automatically for spouse and child SBP coverage at the full base amount. The marriage between former member and the applicant was dissolved on 10 December 2009. Neither the former member, nor the applicant sought to establish former spouse coverage under 10 U.S.C.§ 1448(b)(3)(A) or 10 U.S.C. § 1450(f)(3). DFAS Retired and Annuitant Pay (R&A) was not aware of the divorce until 16 December 2010, when DFAS Garnishment Operations was provided with a copy of the dissolution order of 10 December 2009. Accordingly, even though former member’s SBP account still reflected spouse and child coverage, as the applicant was no longer an eligible spouse and she was not an eligible beneficiary; and, as there is no evidence that the former member acquired another eligible spouse (until October 2014), the spouse coverage was, by law, suspended and no spouse premium deductions should have been made. The child coverage, however, was unaffected by the divorce and continued. Child premium deductions should have been made during this time. On 1 March 2011, the former member submitted a DD Form 2656-1, Survivor Benefit Plan Election Change Certificate, seeking to change coverage to "child only" based on his 10 December 2009 divorce. In response to his request, on 28 April 2011, DFAS R&A changed the SBP coverage from "spouse and child" to "child only" coverage and was entered effective 10 December 2009, the date of divorce. On 7 July 2011, the Spokane WA Superior Court issued an order amending the 10 December 2009 dissolution order. On 14 July 2001 [sic], the applicant’s attorney submitted a letter to DFAS, along with the DD Form 2656-1 and the court order, seeking to establish former spouse coverage. After receipt of this correspondence DFAS R&A changed the member's SBP coverage retroactively from "child" coverage to "former spouse" coverage effective 7 July 2011 (the date of the order amending the 10 December 2009 dissolution order). R&A has generally explained that it made the determination that the original dissolution order of 10 December 2009 was an ineffective award of SBP coverage because it contained a requirement that the applicant pay the cost of the survivor benefit protection. Thus, because the 7 July 2011 order was the first sufficient court order to award SBP coverage, the applicant had the one-year period from the date of the order to make a deemed election. There is no record that in 2011 DFAS R&A advised the applicant’s attorney that the former spouse coverage had been established for the reasons thereof. On 8 February 2012, DFAS R&A received a letter from the applicant’s attorney noting that no response to his earlier request had been received and that on 29 July 2011, the applicant remarried (at age 47). The applicant and her attorney made several attempts to confirm her SBP coverage, but DFAS never responded. Then on 10 August 2012, the applicant was advised that former spouse coverage had been established effective 7 July 2011. The former member was also advised of the change. On 25 September 2012, the former member contacted DFAS disputing the establishment of former spouse coverage. He specifically averred that the amendment of 7 July 2011 did not include a new obligation to provide SBP coverage that did not exist in the 10 December 2009 dissolution order. On 29 October 2012, R&A replied to former member explaining that they were unable to make any changes towards appealing the SBP coverage for his former spouse as that action would have to be done by a judge, in a written form, with a judge’s signature. On 7 November 2012, the former member protested again about the establishment of former spouse coverage. On 8 January 2013, R&A replied to the former member advising that DFAS was reversing itself and changing coverage from "former spouse" to "no beneficiary" effective 10 December 2009. R&A also informed the applicant advising her that former spouse coverage was terminated effective 11 December 2012. It appears that R&A determined the applicant could not rely upon the 10 December 2009 dissolution order or the 7 July 2011 amending order to make a deemed election on 14 July 2011 because neither included an obligation on the member to establish SBP coverage and the former member's 14 July 2011 request to voluntarily establish former spouse coverage under 10 U.S.C. 1448(b)(3)(A) which was submitted on a DD Form 2656- 1 was received more than one year after the divorce and untimely. DFAS R&A's actions of 8 January 2013 (changing coverage from "former spouse" to "no beneficiary") had the effect of also cancelling child coverage retroactively. However, as explained above, if, after the divorce, there were no valid changes to the SBP coverage, then spouse coverage should have been suspended effective 10 December 2009 and child coverage should not have been affected. On 9 July 2013, DFAS received another letter from the applicant’s attorney advising that a second amendment to the 10 December 2009 dissolution order had been issued by the court on 2 July 2013. Counsel asserted that the amendment cured any defects in the former spouse election and he asked that former spouse coverage be established. On 3 January 2014, R&A sent the applicant’s attorney a letter informing him that she was not eligible to become an SBP beneficiary as DFAS had not received a deemed election from the former member to add the applicant as former spouse beneficiary within one year from the date of divorce which was 10 December 2009. The spouse of a member who is participating in the plan is no longer covered upon divorce. If a participating member divorces and wishes to provide SBP coverage for his former spouse, he must notify DFAS in writing of the divorce and his intention/election to provide coverage for his former spouse. See 10 U.S.C. § 1448(b)(3)(A). A member may establish former spouse coverage under 10 U.S.C. § 1448 (b)(3)(A) only within one year of the divorce. In this case, there is no evidence that the former member sought to establish former spouse coverage under 10 U.S.C. § 1448(b)(3)(A) within one year of the 10 December 2009 divorce. There was no opportunity after 10 December 2010 for the former member to make a former spouse election. Consequently, the signed DD Form 2656-1 that was not received by DFAS until 14 July 2011 had no effect. Under 10 U.S.C. § 1450(f)(3), if a member is required to elect SBP coverage for his former spouse under the terms of a court order and he "fails or refuses to make such an election," the member may be deemed to have made the "former spouse" SBP election if the Secretary receives a written request using DD Form 2656-10, within one year of the court order or filing involved that an election be deemed to have been made. The applicant did not seek to have a former spouse election deemed to have been made for her under 10 U.S.C. § 1450(f)(3) within one year of the original dissolution order of 10 December 2009. Because neither the member nor the former spouse made a valid request to establish SBP coverage for the former spouse, under the law, after the divorce, "spouse" coverage was suspended, but "child" coverage continued. The applicant could have requested a deemed election from the 2009 order. Under, 10 U.S.C. § 1450(f)(3) a former spouse has one year from the date of the court order first requiring a member to elect SBP coverage to request to be deemed as a former spouse beneficiary. And in cases where a former spouse seeks to be deemed as the former spouse beneficiary based on a state court order that complies, in part, with federal SBP law and conflicts, in part, with federal SBP law, those parts of the state court orders that comply with federal SBP law are given effect wherever possible. The 10 December 2009 order provided: "The wife shall receive fifty percent...of husband's military retired pay ...the survivor benefit protection benefit cost will be paid by husband...The husband shall fully cooperate with wife in assisting her in continuing to receive any benefits available to her." Upon receipt of the request for an advisory opinion from the Air Force Review Boards Agency, the case was referred to DFAS Office of General Counsel (OGC). It is DFAS OGC's judgment the "survivor benefit protection benefit" referred to in the dissolution order is the Survivor Benefit Plan. This is because the first sentence of the first paragraph of section 3.15 is discussing the wife's entitlement to a portion of the member's military retired pay. The second sentence relates to the "survivor benefit protection benefit" of the member's military retired pay. And the only "survivor benefit protection benefit" that was available for the former member’s military retired pay (and indeed the one that had been established since 2006) was the Survivor Benefit Plan. Although the original dissolution order of 10 December 2009 did not specifically use the term "Survivor Benefit Plan," the intent of the parties is sufficiently clear. Additionally, in order for a former spouse to make a deemed election, the court order upon which the election is based must require that the member elect to provide SBP coverage to the former spouse. It is DFAS OGC's view, given the context in which the original dissolution order was entered, and particularly in light of the orders specific requirements that "the survivor benefit protection benefit cost will be paid by husband" and that "The husband shall fully cooperate with wife in assisting her in continuing to receive any benefits available to her," the intent of the parties is sufficiently clear that the former member was required to elect and bear the costs of SBP coverage for the applicant. Although the original dissolution order of 10 December 2009, did not specifically use words to the effect that the "member is required to elect former spouse coverage," because it did require him to bear the costs of the coverage and the only way to bear those costs is to elect the former spouse coverage, the intent of the parties is sufficiently clear enough that the court order is sufficient to use as a basis for a deemed election. Since DFAS OGC views the 2009 order as clear enough to award coverage the 2011 and 2013 court orders are without effect. This is because an order that merely reiterates an earlier order that SBP be elected for a former spouse does not qualify as a modifying court order under the statute for purposes of beginning a new one-year period for requesting to be deemed as a former spouse beneficiary. Only in instances where a subsequent court order imposes a new obligation on the member to elect SBP coverage that did not exist before, will the former spouse have one year from the date of the subsequent order to request to be deemed as a former spouse beneficiary. See 10 U.S.C. 1450(f)(3) and 71 Comp. Gen. 475 (1992). What matters is the substantive obligation to elect coverage, and the one-year period for a request to the Secretary (to be deemed as a former spouse beneficiary) begins when a court order initially imposes that obligation on the member. For the former member, the obligation for former spouse SBP was imposed upon on 10 December 2009. Thus any subsequent order failed to restart the one-year period. Overall, many changes were made to the former member’s account that in retrospect should not have been made. The decision to change the SBP coverage from "child" coverage to "former spouse" coverage effective 7 July 2011 (the date of the order amending the 10 December 2009 dissolution order) was incorrect. At that point the amending order merely reiterated the earlier 2009 order that SBP be elected for the former spouse. An order that merely reiterates an earlier order that SBP be elected for a former spouse does not qualify as a modifying court order under the statute for purposes of beginning a new one-year period for requesting to be deemed as a former spouse beneficiary. Then, on 8 January 2013, DFAS reversed its 2011 determinations but retroactively changed coverage from "former spouse" to "no beneficiary" effective 10 December 2009; however, it should have been changed to “child-only” effective 10 December 2009. When DFAS R&A took action to remedy the "no beneficiary" to "child-only" the date 1 October 2013 was entered, again at that point, spouse coverage should already have been suspended effective 10 December 2009 and child coverage should not have been affected. Despite the inefficiencies by DFAS R&A, the ultimate conclusion regarding the former members military retired pay account, that there is no former spouse coverage, was the correct one. The complete DFAS evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The former member states the reinstatement is not in line with the Department of Defense Instruction 1332.42, para 9d, that states a member described in this paragraph who is required by court order…to elect former spouse and child coverage, shall be deemed to have made the required election if the secretary receives the DD Form 265601 within one year from the date of the court order filing involved. Reinstatement is also not in line with AFI 36-3006, Survivor Benefit Plan (SBP), para 6.4.4 which also sates a retired member with spouse coverage, who divorces may elect, within the first year following divorce, to change the election from spouse coverage to former spouse coverage; and 6.4.4.1 which states a modification court order dated after 14 November 1986 that merely restates the previous provision and imposes no new obligation on the member does not begin a new one-year period. Based on the above guidance, SBP should not be reinstated. The applicant’s complete response is at Exhibit F. Through counsel, the applicant submits a copy of 10 U.S.C § 1450(f)(4) which states: former spouse coverage may be required by court order – a court order may require a person to elect (or to enter into an agreement to elect) under section 1448(b) of this title to provide an annuity to a former spouse, or to both a former spouse and a child. The parties initial divorce decree was defective in at least two aspects: it did not require the former member to do anything, further, contrary to law; it allocated the costs of survivor benefit protection from the applicant’s share. As a result of the defective decree, an amended decree was entered into on 7 July 2011. The amended decree, dated 7 July 2011 [sic] added “the wife shall receive continuation of survivor benefit plan benefits. The parties shall fully cooperate with one another in executing necessary documents to effectuate this division, to include, executing a survivor benefit plan election statement for former spouse coverage.” The amended decree was submitted to DFAS and signed by the applicant and the former member. The advisory states: A member may establish former spouse coverage under 10 U.S.C. § 1448(b)(3)(A) only within one year of the divorce. This is a misstatement of law. Former spouse coverage can be elected within one year of the order requiring SBP coverage. The court order first requiring the benefit is the 11 July 2011 order. The advisory opinion states the intent of the parties is clear in the first decree. However, the statutory test is not whether the document is sufficiently clear, it is whether there is a court order requiring coverage. The amended decree impasses a new obligation. The divorce decree was amended after full opportunity for the former member to object to the applicant’s request. The former member signed off of the amended decree and thereafter, executed a deemed election. The first decree was defective, relative to its actual language and relative to the allocation of costs. The test is whether there is a court order that requires coverage. The applicant’s counsel complete 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 former member’s response and counsel’s rebuttal, in judging the merits of the case. Notwithstanding counsel’s arguments and his view that the original divorce decree was defective, we agree with the opinion and recommendation of DFAS OGC that the 10 December 2009 court order was sufficient to establish former spouse coverage under the Survivor Benefit Plan. Although the divorce decree awarded the applicant continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. We took note that the former service member takes issue with reinstating former spouse SBP and since it appears his second spouse has gained entitlement to the benefit by operation of law, this is now a case involving a disputed claim. In cases involving competing interests, this Board has been advised not to consider such cases unless a court of competent jurisdiction has ruled in the case or remands the case to the Board to make a determination. Since there has been no ruling by a court of competent jurisdiction regarding this issue, we do not find that any basis exists for us to decide this case. In our view, the applicant’s only recourse is to return to a court of competent jurisdiction to have the issue decided. Therefore, in the absence of evidence to the contrary, we must deny the relief sought in the application. THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2014-02340 in Executive Session on 18 November 2015 under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02340 was considered: Exhibit A. DD Form 149, dated 27 May 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, DFAS, dated 29 Sep 15. Exhibit D. Memorandum, SAF/MRBR, dated 30 Sep 15. Exhibit E. E-mail, SAF/MRBR, dated 19 Oct 15. Exhibit F. Letter, Former Member’s Response, undated. Exhibit G. Letter, Applicant’s Response, 29 Sep 15, w/atchs.