RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02509 (DECEASED) COUNSEL: (APPLICANT) HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her former husband’s military records be corrected to reflect he elected full spouse coverage under the Survivor Benefit Plan (SBP), naming her as the beneficiary. APPLICANT CONTENDS THAT: Her divorce decree states that she is the beneficiary on her former spouse’s SBP. Her former spouse did not file the required deemed election form and she was not notified of the need for the form. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the AFBCMR SBP Marital Status Affidavit notarized on, 17 Jul 14, the applicant has sworn/affirmed that on 31 Dec 76, she and the former service member were married and on 3 Mar 94, they divorced. She also indicated that she is not currently married. According to the Defense Enrollment Eligibility Reporting System (DEERS), on 1 Aug 91, the former service member retired from active duty. According to DEERS, on 2 Oct 04, the former service member married his second spouse. According to DEERS, on 2 Nov 14, the former service member died. In a letter dated 17 Mar 15, the counsel of the decedent’s current spouse indicates that because the applicant failed to submit a deemed election request within one year of her divorce from the decedent, his client (the decedent’s widow) became the eligible spouse beneficiary on the first anniversary of her marriage to the decedent (Exhibit G). The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF makes no recommendation indicating the application involves two potential SBP beneficiaries. The DEERS records show the former service member and the applicant were married on 31 Dec 76 and he elected spouse only SBP coverage based on full retired pay prior to his 1 Aug 91 retirement. They divorced on 3 Mar 94 and the divorce decree ordered the applicant to remain the beneficiary to the SBP; however, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. DEERS records show the former service member married his second spouse on 2 Oct 04, but he did not notify the Defense Finance and Accounting Service - Cleveland Center (DFAS-CL) of the change in his marital status or request that spouse coverage be established on his new wife's behalf. DFAS-CL records continue to reflect the applicant's name and date of birth (13 Oct 44) as the eligible spouse beneficiary and premiums continue to be deducted from the member's retired pay. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 8 Sep 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. RETIREE’S REVIEW OF AIR FORCE EVALUATION: The retired service member submitted a sworn/affirmed AFBCMR SBP Marital Status Affidavit notarized on 11 Sep 14, indicating that in 1976, he and the applicant were married and in 1994, they were divorced. In 2004, he married his current spouse. A complete copy of the retired service member’s response is at Exhibit F. 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 in judging the merits of the case; however, her only recourse is to return to a court of law to have the issue decided. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries. While we note the applicant contends that the divorce decree awarded her continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. Since it appears the former service member’s current spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the applicant the SBP benefit. Absent the current spouse relinquishing her entitlement, we find no basis to grant the applicant’s request. 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-2014-02509 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02509 was considered: Exhibit A. DD Form 149, dated 16 Jun 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 20 Aug 14. Exhibit D. Letter, SAF/MRBR (Counsel), dated 8 Sep 14. Exhibit E. Letter, SAF/MRBR (Member), dated 8 Sep 14. Exhibit F. Affidavit, Member, dated 11 Sep 14. Exhibit G. Letter, Counsel, dated 17 Mar 15.