RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03673 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her deceased husband’s records be corrected to reflect that he elected “Former Spouse” coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: A valid deemed election was made within one year of the court order making her eligible for SBP coverage. The Defense Finance and Accounting Service (DFAS) sent a letter on 27 Dec 12 indicating the same. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Defense Enrollment Eligibility Reporting System (DEERS), on 16 Apr 05, the former member married his second (current) spouse. According to the DD Form 2656, Data for Payment of Retired Personnel, dated 29 Dec 09, the former member elected spouse and child SBP coverage, based on full retired pay, naming his current spouse as the eligible spousal beneficiary. According to the DD Form 214, Certificate of Release or Discharge from Active Duty, on 31 May 10, the former member was released from active duty and retired effective 1 Jun 10. According to a Civil Suit Judgment from the 9th District Court of the State of Louisiana provided by the applicant dated 27 Sep 12, the court awarded her the SBP benefits. In a letter dated 27 Dec 12, DFAS acknowledged receipt of the applicant’s request to elect SBP former spouse coverage indicating the basis for the deemed election was the court order dated 27 Sep 12. DFAS also indicated the effective date will be the first of the month following the date of the court order. The former member was advised of the requirement to provide SBP coverage and was provided the election forms for making a former spouse election. According to DEERS, on 8 Jul 14, the former member died. On 3 Oct 14, the applicant provided a signed and notarized affidavit, dated 24 Oct 14, indicating that on 12 Jan 85, she and the former member were married and on 11 Mar 04, they divorced. She also indicated that she is currently not married and her former spouse is married (Exhibit D). The remaining relevant facts pertaining to this application are contained in the memorandum prepared by DFAS-JBJE/CL, which is attached at Exhibit E. AIR FORCE EVALUATION: DFAS-JBJE/CL recommends denial indicating according to law, the former member’s SBP coverage is for his current spouse, effective upon his retirement on 1 Jun 10. The former member elected SBP coverage at retirement for his current spouse and he and the applicant were divorced prior to his retirement. In accordance with the Department of Defense Financial Management Regulation Volume 7B, Chapter 43, Section 430503(A), a member, who has a former spouse and dependent child when becoming eligible to participate, may elect former spouse or former spouse and child coverage, provided the child resulted from the member's marriage to that former spouse. If the former spouse is the member's former spouse at the time the member becomes eligible to participate in SBP or RCSBP, an election for former spouse must take place at or before the member’s retirement. If a member has a former spouse upon becoming eligible to participate, but is not required by a court order or court-approved agreement to provide former spouse coverage, any subsequent court order that requires former spouse coverage will not be honored. A deemed election for former spouse coverage can only be honored if the member is also able to make such an election. The member is not able to make this election as the court order was not in place at or before his retirement; therefore, the deemed request must be denied. A complete copy of the DFAS-JBJE/CL evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 12 Jan 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 error or injustice. While the applicant contends she made a valid deemed election within one year of the court order, we note that the court order cannot be honored because it was not in place at the time the former member became eligible to make such an election, at or before retirement, when he elected his then-spouse and child. Therefore, we agree with the opinion and recommendation of DFAS and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-03673 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-2014-03673 was considered: Exhibit A. DD Form 149, dated 8 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR, dated 3 Oct 14. Exhibit D. Affidavit, Applicant, dated 24 Oct 14. Exhibit E. Letter, DFAS-JBJE/CL, dated 16 Dec 14. Exhibit F. Letter, SAF/MRBR, dated 12 Jan 15. 4 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974