RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03174 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be designated as beneficiary for “former spouse” coverage under the decedent’s Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She has a legal and binding court order that was agreed upon and signed at the time of divorce entitling her to 47 percent of her ex-spouse’s retirement pay, and as an annuitant of his SBP. She has earned these compensations as a former spouse which are legally and rightfully hers. She immediately mailed her divorce decree to the Defense Finance and Accounting Service (DFAS), highlighting the portions pertaining to retirement pay and SBP when she became aware of her ex-spouse’s retirement. Shortly thereafter she began receiving her portion of the retirement pay. Upon the decedent’s passing she was advised his current spouse was listed as the annuitant for his SBP. However, she never received notification that she was dropped as the beneficiary and assumed all these years that her ex-spouse had complied with the issued court order. She and her attorney were unaware of the need to submit a DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election, and do not believe the rule was in effect in 1981. Her research disclosed the law was amended in 1986 to require the DD Form 2656-10 within one-year of a court order. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System (MilPDS), the decedent retired effective 1 October 1991, in the grade of chief master sergeant (E-9). According to a Final Decree of Divorce issued in the 200th Judicial District Court of Travis County, Texas, submitted by the applicant, she and the decedent divorced on 6 January 1981. Furthermore, it indicated the decedent was ordered to elect “joint and survivor benefits” which guarantee payments during the lifetime of the applicant. According to AFPC/DPFFF, the decedent remarried on 10 January 1981 and he passed away on 10 July 2014. A copy of the SBP marital status and release of benefits affidavits were forwarded to the applicant and decedent’s surviving spouse respectively, on 22 November 2014 (Exhibit C). The applicant responded with a signed and notarized affidavit, dated 5 December 2014, which indicate she is not currently married and the decedent was married (Exhibit D). The decedent’s surviving spouse responded through counsel, indicating she will not complete the affidavit for the release of benefits because she does not agree to relinquish any competing interest (Exhibit E). 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 F. AIR FORCE EVALUATION: AFPC/DPFFF indicates that based upon AFBCMR guidance, dated 18 March 2004, they are forwarding the applicant’s request without a recommendation because it involves two potential SBP beneficiaries. Furthermore, there is no evidence the finance center received a request from the applicant deeming that a SBP election be made on her behalf during the one year period established under Public Law (PL) 98-525. A person’s eligibility to receive a spouse SBP annuity terminates upon divorce. Also, PL 98-94, authorized former spouse SBP coverage under the insurable interest option for retired members and established a one-year open enrollment during the period of 24 September 1983 through 23 September 1984. In addition, PL 98-525, authorized deemed elections by former spouses requiring SBP to be established on their behalf within one-year of the court order or before 1 October 1985, whichever was later. Subsequently, PL 99-145 authorized a one-year period for SBP participants to elect coverage for their former spouses under the same costs and provisions as spouse coverage. Such an election became effective 1 March 1986, or the first day of the month following receipt of a valid election, if later. In this case, the Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent and his surviving spouse were married on 10 January 1981 and he elected spouse only SBP coverage based on full retired pay. DFAS established the SBP coverage the member elected and premiums were deducted from his retired pay until his demise on 10 July 2014. The decedent’s surviving spouse is currently receiving a monthly SBP annuity. A complete copy of the AFPC/DPFFF evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states PL 98-94 was not in effect in 1981. Furthermore, while it was stated she did not apply for SBP election during the one-year period established under PL 98-525, the Air Force did not notify her or her attorney that the SBP election was to be made by her in 1983 or 1984. Without notification or correspondence there was no way to get this information in the early 80’s. The internet, websites, and email did not exist. In addition, she was not notified at the time of the decedent’s retirement when she applied for her portion of his retirement pay. She reiterated the decedent was ordered by the court to elect “joint and survivor benefits” which guaranteed her payments during her lifetime. He knowingly and willfully disregarded the court order thereby committing a fraudulent act. Her financial security has been taken from her and the sudden loss of income has caused great hardship. The applicant’s complete response is at Exhibit H. 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 her rebuttal response; however, based on the legal guidance the Board has been given, we are not able to grant relief in cases of competing SBP beneficiaries. While we do not take issue with the applicant’s assertion she was awarded “joint and survivor benefits”, she failed to convert the SBP coverage within the required timeframe. Consequently, the decedent’s current spouse gained entitlement to the benefit as an operation of law. The applicant’s only recourse is to return to a court of law to have the issue decided or if the current spouse provides a notarized consent relinquishing the SBP benefit. 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-2014-03174 in Executive Session on 23 July 2015 under the provisions of AFI 36-2603: Vice Chair Member Member Due to the retirement of the Panel Chair, XXXX has agreed to sign as Acting Panel Chair. The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03174 was considered: Exhibit A.  DD Form 149, dated 30 July 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letters, SAF/MRBR, dated 22 November 2014, w/atchs. Exhibit D.  Marital Status Affidavit-Applicant, dated 5 December 2014. Exhibit E.  Letter, Surviving Spouse, dated 15 December 2014, w/atch. Exhibit F.  Memorandum, AFPC/DPFFF, dated 14 January 2015, w/atch. Exhibit G.  Letter, SAF/MRBR, dated 27 February 2015. Exhibit H.  Letter, Applicant, dated 16 March 2015.