RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2014-05059 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:
When she and the decedent divorced, he was transitioning to a civilian employer far away from any military base. The divorce decree stated the applicant was to remain the SBP beneficiary, but the decedent was unaware of all the paperwork that needed to be signed when they divorced in 2003.

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

STATEMENT OF FACTS:
According to information provided by the applicant:
On 6 Oct 73, the deceased former member and the applicant were married.

On 1 Apr 97 the deceased former member retired from military service.

On 21 Jan 03, the deceased former member and the applicant divorced.

On 23 Jul 14, the former member died.
According to information provided by the Defense Finance and Accounting Service, the applicant is not the Arrears of Pay (AOP) beneficiary on file.

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 to grant the applicant’s request to change her deceased former spouse’s SBP beneficiary from spouse to former spouse coverage, indicating there is evidence of an error or injustice. A person’s eligibility as an SBP spouse beneficiary 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: (1) the retiree may file an election change, or (2) 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 the member agreed, or 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 (DFAS) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member’s death.

Upon his 1 Apr 97 retirement, the deceased former member elected spouse only coverage, based on a reduced level of retired pay. As evidenced in the divorce decree, the applicant was awarded “all survivorship benefits available; including annuity, for which the defendant is ordered to pay if any survivorship benefit involves any cost.” There is no evidence either party submitted a valid election to change spouse to former spouse coverage during the required time following their divorce. DFAS records continued to reflect the applicants name and date of birth as the eligible spouse beneficiary and SBP premiums continued to be deducted from the member’s retired pay until his death. There is no evidence either party remarried, and accordingly, there is no competing claimant. Despite the decedent’s failure to submit a valid former spouse election change, there is no evidence to support he requested coverage for the applicant to be terminated following their divorce, indicative of his intent for her to remain eligible for his SBP benefit. To deny the applicant’s request would be to deny an asset awarded to her by the court.

There is no evidence of Air Force error in this case and absent a competing claimant; therefore, it is recommended the former member’s record be corrected to reflect on 22 Jan 03, he submitted a valid election for former spouse coverage based on the previous level of reduced retired pay, naming [the applicant] as the eligible 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 6 Apr 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, contrary to the recommendation provided by AFPC/DPFFF, there is evidence of a competing claimant in this case. In this respect, based on information provided by the Defense Finance and Accounting Service (DFAS), the applicant is not the deceased former member’s Arrears of Pay (AOP) beneficiary. Because SBP premiums continued to be deducted from the deceased former member’s retired pay long after SBP coverage should have been suspended due to the divorce, these premiums are due to be refunded to the AOP beneficiary. Because the applicant is not the AOP beneficiary, correcting the record in the manner requested by the applicant will deprive the AOP beneficiary to a legal entitlement and we have been advised that this Board should not correct a record when doing so will deprive another party of such an entitlement when 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. 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 heir(s) were to provide a notarized statement relinquishing their right to the refunded premiums or complete the attached Survivor Benefit Program–AOP affidavit, the Board may be willing to reconsider the applicant’s request based on new evidence. 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-2014-05059 in Executive Session on 21 Jan 16 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
All members voted to correct the records as recommended. The following documentary evidence was considered:

Exhibit A.	DD Form 149, dated 5 Dec 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPFFF, dated 4 Mar 15. Exhibit E.	Letter, SAF/MRBR, dated 6 Apr 15.
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