RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-04601 COUNSEL: NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
On behalf of the applicant, a designated representative with a power of attorney requests the deceased former spouse’s Survivor Benefit Plan (SBP) beneficiary be changed from spouse to former spouse coverage.

APPLICANT CONTENDS THAT:
She was awarded SBP benefits, in accordance with their divorce decree, and the deceased former member changed his SBP annuity, after he remarried. The current beneficiary of the contended SBP annuity is the decedent’s widow [not the applicant].

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

STATEMENT OF FACTS:
According to information provided by the applicant:
On 26 Sep 43, the deceased former member and the applicant were married.

On 28 Feb 65, the deceased former member was relieved and retired,	effective	1	Mar	65,	and	credited	with	20	years	and
24 days of active service.
On 3 Nov 99, the deceased former member and the applicant divorced.

On 10 Aug 14, the former member died.
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 C.

AIR FORCE EVALUATION:
AFPC/DPFFF does not provide a recommendation. A person’s eligibility to receive a spouse SBP annuity terminates upon divorce; however, the law provides two mechanisms for changing spouse coverage to former spouse coverage. Both must be exercised within the first year following divorce: the retiree may file an election change, or 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 that the member agreed, or that 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 the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member’s death.

On 1 Mar 65, the former member retired and elected spouse only SBP coverage based on full retired pay during the initial SBP open enrollment period authorized by Public Law 92-425 (21 Sep 72 - 20 Mar 74).

On 3 Nov 99, the parties divorced and in the Marital Separation Agreement, incorporated in the divorce decree, the member agreed to take steps to ensure the applicant remain as the designated SBP beneficiary. There is no evidence either party submitted a valid former spouse election during the required time following their divorce.

On 16 Dec 99, according to information from Defense Enrollment Eligibility Reporting System (DEERS), the former member married [his wife the time of his death] and she became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. SBP spouse premiums were deducted from the member’s retired pay until his 10 Aug 14 death. The former member’s widow is currently receiving the monthly SBP annuity.

Based on 18 Mar 04 AFBCMR guidance, no recommendation is made because it involves two potential SBP beneficiaries.

A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A Copies of the Air Force evaluation was forwarded to the applicant on 27 Feb 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. Additionally, we note there is a competing interest in this case in that the deceased member’s widow became SBP beneficiary by operation of law on the first anniversary of their marriage. 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 deceased former member’s widow were to provide a notarized statement relinquishing her right to the SBP annuity, 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-2014-04601 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-2014-04601 was considered:

Exhibit A.	DD Form 149, dated 8 Oct 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPFFF, dated 29 Jan 15. Exhibit D.	Letter, SAF/MRBR, dated 27 Feb 15.