RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2014-03738 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
Her	deceased	former	spouse’s	Survivor	Benefit	Plan	(SBP) beneficiary be changed from spouse to former spouse coverage.

APPLICANT CONTENDS THAT:
Her deceased former spouse paid premiums for 25 years expecting his SBP benefits to go to her. He was discharged in Nov 88 and was not aware he had to change the benefits to specifically reflect former spouse. To further support her request, she contends there was a lack of reasonable communication between the Defense Enrollment Eligibility Reporting System (DEERS) and the Department of Defense (DoD) Finance offices, yet service members are expected to communicate with all departments. A copy of the deceased former service member’s divorce decree and certificate of death is provided.

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

STATEMENT OF FACTS:
On 4 Apr 81, the deceased former service member and the applicant were married.

On 19 Nov 88, the deceased former member was separated from active service and retired.

On 26 Jan 90, the deceased former service member and applicant were legally divorced.

On 16 Feb 90, according to information by the Defense Finance and Accounting Service (DFAS), the deceased former service member remarried, and later divorced on 27 Dec 01.

On 28 Jun 01, according to information by the Defense Finance and Accounting Service (DFAS), the deceased former service member was again remarried, and later divorced on 18 Jan 13.

On 2 Feb 14, the former service member died.
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 C.

AIR FORCE EVALUATION:
AFPC/DPFFF recommends granting the applicant’s request, indicating there is evidence of an error or an injustice. The deceased service member did not request SBP coverage be terminated following his divorce from the applicant, and he did not request SBP coverage be established on his two subsequent spouses, indicates intent for the applicant to remain his SBP beneficiary. SBP premiums were deducted from the member’s retired pay until his
2 Feb 14 death. It is recommended to correct the deceased service member’s records to reflect on 27 Jan 90, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums.

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 30 Jun 15 for review and comment within 30 days (Exhibit D). 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 interest. While we do not take issue with the applicant’s assertion that her divorce decree ordered her former husband to continue coverage for her under SBP, we note neither an election by the former member nor a deemed election by the applicant was received within the one-year period of their divorce as required by law.  While he applicant submitted a notarized affidavit, dated 17 Dec 14, that 1) affirms she was married to the former member at the time of retirement, and 2) the former member was not married at the time of his death, the fact
1.	

remains the former member has two subsequent marriages. We have been advised by our Agency Legal Counsel a potential exists for competing interests over any Arrears of Payment (AOP). In cases involving competing interests, this Board has been advised 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 Arrears of Pay (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-2014-03738 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03738 was considered:

Exhibit A.	DD Form 149, dated 24 Feb 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, ARPC/DPTT, dated 2 Jun 15. Exhibit D.	Letter, SAF/MRBR, dated 19 Jun 15.