RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04014 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: According to their divorce decree she would receive SBP. She attempted to enroll in SBP but it was denied. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According documentation provided by AFPC/DPFFF the decedent retired on 1 Dec 94. On 3 Oct 14, SAF/MRBR notified the applicant that she needed to complete a signed notarized marital status affidavit (Exhibit C). In response the applicant provided the signed notarized marital status affidavit (Exhibit D) 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 E. AIR FORCE EVALUATION: AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice. Under the laws governing SBP a married service member, who declined spouse coverage at the time of retirement, is prohibited from providing former spouse coverage following a divorce unless Congress authorizes an open enrollment period. Retirees were allowed to elect former spouse coverage during the 1 Oct 05 through 30 Sep 06 open enrollment period. During the enrollment period, service members were advised by direct mail of their eligibility to make an election. The enrollment packets, along with the Afterburner, News for USAF Retired Personnel, were sent to the correspondence address provided by the retiree to the finance center and it contained points of contract to use to obtain additional information. In addition, the service members were required to live for two years from the effective date of the election. The Defense Finance and Accounting Service – Cleveland (DFAS-CL) determines the service members’ disposable income in accordance with enforceable provisions of the court order which comply with the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982. Retired pay or any division of retired pay ceases upon the service member’s death. Under the provisions of Title 31, USC Section 3702, claims for an SBP annuity are required to be submitted within six years of the service member’s death. The applicant and the service member were married on 15 May 76. The service member declined SBP coverage with the applicant’s concurrence, prior to his 1 Dec 94 retirement. The parties divorced on 13 Oct 00, and the divorce decree awarded the applicant 50 percent of the service member’s military retirement, but was silent on SBP. The service member passed away on 28 May 07. The division of retired pay is not considered and should not be interpreted as pertaining to SBP. The laws governing SBP are very specific, in that it does not allow for former spouse coverage to be established unless the former spouse was covered as a spouse when the service member retired. The service member following their divorce could have elected former spouse coverage during the 05-06 open enrollment period; however, the election would have been voided because the service member passed away before the two year survival requirement. Furthermore, SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage. Since there was no spouse SBP coverage established, former spouse coverage may not be authorized in this case. A complete copy of the AFRPC/DPFFF evaluation, with attachments, 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 E). 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 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, to include the rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. 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-2014-04014 in Executive Session on 12 Jun 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04014 was considered: Exhibit A. DD Form 149, dated 22 Sep 14, w/atchs. Exhibit B. Letter, SAF/MRBR dated 3 Oct 14, w/atch. Exhibit C. Survivor Benefit Plan – Marital Status – Affidavit - Exspouse, dated 10 Oct 14. Exhibit D. Memorandum, AFPC/DPFFF, dated 26 Nov 14, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 23 Feb 15.