RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02386 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her former spouse’s record be corrected to show that she is the former spouse beneficiary under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: Her former spouse agreed that she would receive the SBP benefits. In support of her request, the applicant provides a personal statement, copies of the former member’s death certificate, divorce decree, Separation and Property Settlement Agreement, marital status affidavit and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the divorce decree, dated 9 Jun 95, the applicant and her former spouse were married on 27 Mar 71. According to the Separation and Property Settlement Agreement, dated 9 Jun 95, (incorporated in the divorce decree), the parties agreed the former member would “continue to have deducted from his gross retirement pay the monthly premium for the SBP with wife being the beneficiary thereof.” According to the Defense Enrollment Eligibility Reporting System (DEERS), on 19 Dec 98, the former service member married his second spouse. On 10 Aug 13, the former service member died. On 19 Jun 14, copies of the AFBCMR marital status affidavit were forwarded to the applicant to verify if she had remarried. The applicant responded with a signed and notarized affidavit dated 3 Jul 14, which indicated she has not remarried. AIR FORCE EVALUATION: AFPC/DPFFF recommends denial. There is no evidence of an Air Force error or injustice. However, the Board may reconsider the applicant’s request upon receipt of a clarified court order which clearly awards her the SBP. The former service member failed to properly complete a DD Form 2656, Data for Payment of Retire Personnel, prior to his 1 Dec 94, retirement. Without confirmation of his marital status at the time of his retirement, DFAS-CL established spouse and child coverage based on full retired pay to comply with the law. On 9 Jun 95, the parties divorced and in the Separation and Property Settlement Agreement incorporated in the divorce decree, the parties agreed the applicant would receive “one half of the former service member’s military retirement,” and in the Qualified Domestic Relations Order (QDRO) the applicant was awarded fifty percent of the former service member’s disposable retirement pay, but neither of the documents specifically addressed SBP entitlements. There is no evidence the former service member submitted a valid election to voluntarily change spouse to former spouse SBP coverage within the first year following their divorce as the law requires. Upon receipt of the QDRO from the applicant’s attorney, DFAS-CL suspended the spouse coverage effective 9 Jun 95. DEERS records reflects the former service member married his second spouse on 19 Dec 98, but did not request that DFAS-CL establish SBP coverage on her behalf; however she became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. On 10 Aug 13, the former service member died. His widow is eligible to receive an SBP annuity of $1,624.00 but she has not yet applied for the benefit. The applicant may request to deem an SBP election on behalf of the former service member if 1) a court order was issued ordering him to make such an election or 2) the former service member’s agreement to maintain SBP coverage for his former spouse was incorporated in the divorce decree. None of the documents the applicant provided (Separation and Property Agreement or QDRO) had language that would entitle her to deem former spouse SBP coverage. The complete DPFFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her attorney submitted DD Form 2293, Application for Former Spouse Payments from Retired Pay, dated 25 Aug 95 and copies of her Separation and Property Settlement Agreement, dated 9 Jun 95 to DFAS-CL that attest to the fact that her former spouse agreed to make her the former spouse beneficiary for SBP benefits. Her Separation and Property Settlement Agreement, under the heading “Life Insurance” states, “the parties agree the parties will continue to have deducted from his gross retirement pay the monthly premium for the survivor benefit plan with wife being the beneficiary thereof. The premium payments currently are $123.89.” This document was signed by both her former spouse and her and authenticated by the Clerk of the Court. During most of her former spouse’s military service, she put her own career on hold to support him in his military career. She was unable to achieve seniority in her own employment due to the frequent moves. When her former spouse remarried he was no longer in the military and his new wife’s career has not been affected by military life. She does not understand why DFAS-CL suspended spouse coverage upon receipt of the QDRO from her attorney, when the Separation and Property Settlement Agreement (incorporated into the divorce decree) clearly states that her former spouse agreed to provide her with survivor benefits. Her former spouse did not submit a DD Form 2656 for his current spouse either before the one year anniversary of their marriage. She is sure her former spouse must have informed his current spouse that he signed the court order making her the benefactor of his survivor benefits as the current spouse has not submitted an application. In further support of her request, the applicant provides a personal statement, copies of DD Form 2293; DD Form 2656, Separation and Property Settlement Agreement and various other documents associated with her request. The applicant’s complete response, with attachments, is at Exhibit D. ADDITIONAL AIR FORCE EVALUATION: After reviewing the AFPC/DPFFF advisory opinion, dated 30 Jul 14, the Board staff determined the facts and recommendation as stated were incorrect. Specifically, a review of the Separation and Property Settlement Agreement (incorporated in the divorce decree), dated 9 Jun 95, provided by the applicant reflects language that would entitle her to deem former spouse SBP coverage. In a memorandum dated 27 May 15, DPFFF revised their advisory opinion and the following was provided: The parties divorced on 9 Jun 95, and in the Separation and Property Settlement Agreement, (incorporated in the divorce decree), the parties agreed the member would, “continue to have deducted from his gross retirement pay the monthly premium for the SBP with the wife being the beneficiary thereof.” There is no evidence either party submitted a valid former spouse election during the required time following their divorce. DPFFF now forwards the request without a recommendation because it involves two potential SBP beneficiaries. The complete DPFFF evaluation is at Exhibit E. APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 May 15, for review and comment within 30 days (Exhibit F). As of this date, this office has not received a response. 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 note the conflicting advisory opinions prepared in this case; however, the applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries. We took notice of the applicant’s complete submission in judging the merits of the case and note the Separation and Property Settlement Agreement incorporated in the divorce decree stipulated that the former member would continue to have deducted from his gross retirement pay the monthly premium for the SBP with the applicant (his former spouse) being the beneficiary thereof. However, neither the applicant nor the former member made a deemed election within the one-year period, from the date of the decree of divorce, as required by law to establish former spouse coverage. By operation of law, the former member’s current spouse became the eligible SBP beneficiary on the one-year anniversary of their marriage since no action was taken to elect former spouse SBP coverage by the applicant or former member. Although the Board has the authority to change SBP records, only in the most unique of circumstances would the Board make a ruling on a case that involves two claimants to a benefit that only one of them can receive. However, if the legal beneficiary 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 above and in the absence of evidence to the contrary, 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-2014-02386 in Executive Session on 23 Jul 15, under the provisions of AFI 36-2603: Vice Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 May 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 30 Jul 14. Exhibit C. Letter, SAF/MRBR, dated 20 Oct 14. Exhibit D. Letter, Applicant, dated 10 Nov 14, w/atchs. Exhibit E. Letter, AFPC/DPFFF, dated 27 May 15. Exhibit F. Letter, SAF/MRBR, dated 27 May 15.