RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2014-03420 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
Her late former spouse’s record be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
The original SBP Election statement was retained in her former spouse’s personal  file and not mailed in. The applicant discovered after her former spouse’s death that he had failed to mail this to Defense Accounting and Finance (DFAS). Prior to his death, the former service member mailed the applicant a copy of his election form.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
On 12 Jun 61, the former member entered the Regular Air Force. On 2 May 64, the former member and the applicant married.
On 31 Jul 81, the former member retired, and was credited with
20 years, 1 month, and 19 days of active service.
On 31 Aug 11, the former member and the applicant divorced. On 11 Apr 14, the former member remarried.
On 29 Aug 14, a copy of the AFBCMR marital status affidavits were forwarded to the applicant (Exhibit C).

On 8 Sep 14, the applicant responded with a signed and notarized affidavit, which indicated she has not remarried (Exhibit D).

According to information provided by DFAS, the applicant is not the Arrears of Pay (AOP) beneficiary on file.

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit E.

AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. A person's eligibility to receive spouse SBP annuity terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage. One of the following actions must be taken within the first year following divorce: (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf. In the latter case, the former spouse must provide legal documentation the member agreed, or the court ordered the member, to establish former spouse coverage. If neither the member nor the former spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify DFAS of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member's death.

The applicant and the member were married on 2 May 64. The member elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Aug 81 retirement. The parties divorced 31 Aug 11 and the Marital Settlement Agreement, incorporated in the divorce decree, ordered the applicant be deemed as the irrevocable beneficiary of the SBP. There is no evidence either party submitted a valid election to change spouse to former spouse SBP coverage within the first year following their divorce as the law requires. The member married   on 11 Apr 14; however, she is not eligible to receive an SBP annuity because the member died on 12 May 14,
11 months before the anniversary of their marriage. DFAS records continue to erroneously reflect the applicant's name and date of  birth (28 Feb 47) as the eligible spouse beneficiary and premiums were deducted from the member's retired pay until his death.

Title 10 does not provide a waiver for the one-year, post- retirement marriage requirement, unless the widow is the parent of issue of a child born before the first anniversary of that marriage. Defense Enrollment Eligibility Reporting  System (DEERS) does not reflect a child born of his marriage to Lynda; therefore, this criteria was not met, and there is no competing claimant. Despite the member's failure to submit a valid former spouse election change, he did not request coverage for the applicant to be terminated following their divorce, indicative of his intent to maintain her as the eligible SBP beneficiary.

The	complete	AFPC/DPFFF	evaluation,	with	attachment,	is	at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air  Force evaluation was forwarded to the applicant on 23 Feb 15, for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office.

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, the applicant has not demonstrated extraordinary circumstances exist that are required for this Board to grant relief in cases of competing interests over any Arrears of Payment (AOP). Although contrary to the AFPC/DPFFF information, DFAS has identified the applicant is not the AOP beneficiary on file. As such, this Board has been advised by our Agency Legal Counsel 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. Therefore, we are precluded from granting the applicant the SBP benefit. However, the Board would like to point out if the former member’s heir(s) were to provide a notarized statement relinquishing their right to the AOP or complete the attached Survivor Benefit Program – Release of AOP affidavit; the Board may be willing to reconsider her request. Otherwise, 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 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-2014-03420 in Executive Session on 15 Jun 15, under the provisions of AFI 36-2603:

, Vice Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 8 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C.  SAF/MRBR Letter, dated 29 Aug 14.
Exhibit D.	Applicant, Letter, dated 8 Sep 14. Exhibit E.	Memorandum, AFPC/DPFFF, dated 12 Dec 14. Exhibit F.	Letter, SAF/MRBR, dated 23 Feb 15.