RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04169 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s (decedent) records be corrected to show he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She and her former spouse were married for 22 years. Although they were divorced, he continued to contribute to SBP and intended for her to be the SBP beneficiary. In support of her request, the applicant provides a personal statement, copies of death and marriage certificates, divorce decree and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The decedent retired from the Air Force in the grade of technical sergeant (E-6) effective 11 May 2001. According to an AFBCMR SBP Marital Status Affidavit notarized on 4 November 2014, the applicant has sworn/affirmed that neither she nor the member was currently married. According to the former member’s retired pay account (DFAS Member Entitlement Data), dated 19 September 2012, the applicant is designated as the Arrears of Pay (AOP) beneficiary. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. Although the decedent failed to submit an election to establish former spouse coverage, he did not request the applicant's coverage be terminated. His willingness to accept a reduction in his retired pay, even though he had no eligible spouse beneficiary for over three years, is indicative of his intent for her to remain eligible for the SBP. The decedent and the applicant were married on 10 October 1987, and he elected spouse only SBP coverage based on full retired pay prior to attaining age 60. His retired pay commenced on 11 May 2001. The parties divorced on 8 September 2010, and the divorce decree was silent on the SBP. There is no evidence the decedent submitted a valid election to voluntarily change spouse to former spouse coverage during the required time following their divorce as the law requires. The retired pay data system at DFAS - Cleveland continued to reflect the applicant's name and date of birth as the eligible spouse beneficiary. SBP premiums continued to be deducted from the decedent's retired pay until his 1 September 2014 death. There is no evidence either party remarried; therefore, there is no competing claimant. There is no evidence of Air Force error in this case and absent a competing claimant, recommend the decedent’s record be corrected to reflect that on 9 September 2010, 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 B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 3 June 2015, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date this office has not received a response (Exhibit C). ADDITIONAL AIR FORCE EVALUATION: On 22 July 2015, the Secretary of the Air Force (SECAF) denied relief to an applicant seeking corrections from the AFBCMR to correct the records to show a timely SBP election for former spouse coverage was made. The SECAF memorandum stated, in part, that the AFBCMR cannot adequately investigate and rule on a matter when there are competing interests, and granting relief to an applicant would result in property being taken away from another party whose interests cannot be adequately represented in the AFBCMR process. The AFBCMR has consistently refused to grant relief to applicants when doing so would deprive another party of a benefit to which they are legally entitled, as could be the case here. The court, not the AFBCMR, is the appropriate venue to weigh competing interests while ensuring the legal interests of all parties are being protected, and stated that pertinent matters relating to a decedent's estate are best left to the State courts to resolve rather than the Board. The memorandum also noted that her decision did not preclude the applicant(s) from seeking reconsideration based on newly discovered relevant information or, better yet, from seeking redress through the appropriate court. A complete copy of the SECAF memorandum is at Exhibit E. In accordance with the SAF/GCM legal opinion on similar cases considered by the Board, the Board has been advised that it should not consider cases involving disputed claims unless a court of competent jurisdiction has ruled on the case or pushes the Board to make a determination in the case. A complete copy of the SAF/GCM legal opinion is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The Secretary of the Air Force’s memorandum dated 22 July 2015, regarding competing interests is confusing and utilizes legal language to deter or discourage her from continuing with her AFBCMR application. Her application to the Board was clear and respectfully addressed her concerns regarding why she was being denied SBP. While her former spouse failed to notify DFAS within one year of their divorce, and did not change her status from “spouse” to “former spouse,” he purchased SBP in good faith and intended for her to receive this entitlement to allow her to provide for their family. This is evidenced by the fact that he paid into the SBP program from May 2001 until his passing in September 2014. She recently learned that her former spouse failed to notify ARPC within one year of their marriage. Had ARPC properly notified him of this requirement he would have timely complied. Losing this benefit would cause a genuine financial hardship and she beseeches the Board to grant her request. In further support of her request, the applicant provides a DFAS Member Entitlement Data printout, dated 19 September 2012, that reflects her as the sole beneficiary for the AOP. The applicant’s complete response, with attachments, 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After carefully reviewing this application, we agree with the recommendation of the Air Force office of primary responsibility (OPR) and agree with some of the rationale expressed as the basis for our decision that the applicant has been the victim of an error or an injustice. We note the OPR’s advisory did not address the potential competing interest (AOP Designation). Nonetheless, we note the applicant provides an SBP information printout, dated 19 September 2012 that reflects that she is the sole AOP beneficiary and DFAS has confirmed, therefore, the possibility of a competing interest is eliminated. Although the divorce decree is silent on the SBP, as noted by the OPR, the decedent’s willingness to accept a reduction in his retired pay even though he had no eligible beneficiary for over three years is indicative of his intent to maintain SBP coverage on the applicant’s behalf. Therefore, we recommend the records be corrected to reflect that the decedent made a valid SBP election based on full retired pay effective 9 September 2010, naming his former spouse as the eligible former spouse beneficiary. Approval should be contingent upon recovery of any SBP premiums that will be due as a result of the recommended correction. Accordingly, we recommend the record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEDENT be corrected to show that: a. On 9 September 2010, he made a timely and effective election for former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay naming his former spouse as the eligible beneficiary. b. On 1 September 2014, his widow submitted a timely and effective claim for survivor benefit annuity. c. Approval should be contingent upon recovery of SBP premiums. The monthly SBP annuity will be applied to the premium debt until the total amount of premiums owed is recovered. The following members of the Board considered AFBCMR Docket Number BC-2014-04169 in Executive Session on 2 March 2016 and 10 March 2016, 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-2014-04169 was considered: Exhibit A. DD Form 149, dated 6 October 2014, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 8 December 2014. Exhibit D. Letter, SAF/MRBR, dated 3 June 2015. Exhibit E. Memorandum, SECAF, dated 22 July 2015. Exhibit F. Memorandum, SAF/GCM, dated 18 October 2006. Exhibit G. Email, SAF/MRBC, dated 23 October 2015. Exhibit H. Emails, Applicant, dated 23 November 2015 and 28 November 2015, w/atchs.