RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05124 (MEMBER) COUNSEL: (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former husband’s military records be corrected to reflect he elected full spouse coverage under the Survivor Benefit Plan (SBP), naming her as the beneficiary. APPLICANT CONTENDS THAT: Her former husband’s lawyer organized the change of SBP for former spouse coverage. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the member’s DD Form 214, Certificate of Release or Discharge from Active Duty, on 31 Jul 06, he retired on 1 Aug 06. According to an AFBCMR SBP Marital Status Affidavit notarized on 13 Feb 15, the member has sworn/affirmed that on 21 Aug 87, he and the applicant were married and on 6 May 11, they divorced. He also indicated that on 29 Jul 11, he married his current wife. According to the AFBCMR SBP Release of Benefits Affidavit notarized on 13 Feb 15, the member’s current wife has sworn/affirmed that she is married to the member and relinquishes any competing interest in the SBP in favor of the applicant. In a letter, dated 13 Feb 15, the former member states the applicant’s request for SBP coverage should be denied because she waited too long and her request has no merit. His former spouse was aware that she had to make a deemed election within one year of the court order, or SBP coverage would end. The member provides copies of the Consent Order from his divorce decree, a letter from the Defense Finance and Accounting Service (DFAS), dated 27 Sep 10, providing guidance used in the court order regarding SBP coverage and deemed elections, and a letter, dated 12 Oct 10, that indicates the applicant received the DFAS letter (Exhibit F). 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 G. AIR FORCE EVALUATION: AFPC/DPFFF makes no recommendation indicating the application involves two potential SBP beneficiaries. 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. One of the following actions must be taken 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 - Cleveland (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. The former member elected spouse and child SBP coverage based on full retired pay prior to his 1 Aug 06 retirement. On 6 May 11, they divorced and in the Consent Order, incorporated in the divorce decree, the applicant agreed upon "acknowledging that she must via "deemed election" within one year of the date of the order initiate SBP coverage and that if she fails to do so SBP coverage will end." There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. The Defense Enrollment Eligibility Reporting System (DEERS) records show the member married his current spouse on 29 Jul 11, but he did not notify DFAS-CL of the change in his marital status or request that spouse coverage be established on his new wife's behalf. Nevertheless, his current spouse became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage. The youngest child lost eligibility due to age in Jul 10. DFAS-CL records continue to erroneously reflect the applicant's name and date of birth (xx xxx xx) as the eligible spouse beneficiary and premiums continue to be deducted from the member's retired pay. A complete copy of the AFPC/DPFFF evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states that the applicant was under the impression that the member’s advocate was dealing with all aspects of registration of the Order, including the election process. The applicant contacted DFAS and at all times she was given the impression that all necessary steps had been taken to protect her interest in the SBP coverage. Counsel states what the applicant currently receives from the member covers her rent and if she loses the SBP coverage and the member dies, she would lose her property and would be virtually destitute. Lastly, counsel states that it is their understanding that the member and his current spouse are well off and the SBP coverage for the current spouse would be unnecessary. The counsel’s complete response, with attachments, is at Exhibit J. 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. The Board took notice of the applicant’s complete submission in judging the merits of the case; however, the Board majority believes the applicant’s only recourse is to return to a court of law to have the issue decided. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries. While we note the divorce decree awarded the applicant continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. Since it appears the former member’s current spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the former spouse the SBP benefit. While we also note the former member’s current spouse has provided an affidavit relinquishing the SBP benefit, the Board majority also finds the former member’s statement disagreeing with relinquishing the SBP benefit as a competing interest, due to the former spouse not making a deemed election within one year. Should the applicant provide an affidavit from the former member withdrawing his statement, we would be inclined to reconsider the case based on new evidence. Therefore, in the absence of such an affidavit, the Board majority finds no basis to recommend granting the relief sought in this application. RECOMMENDATION OF THE BOARD: A majority of the panel finds insufficient evidence of an error or injustice and recommends the application be denied. The following members of the Board considered AFBCMR Docket Number BC-2014-05124 in Executive Session on 18 Nov 15 and 2 Jun 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board voted to deny the application. __________voted to correct the records but does not desire to submit a Minority Report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR (Applicant), dated 15 Jan 15. Exhibit D. Letter, SAF/MRBR (Member), dated 15 Jan 15. Exhibit E. Letter, Counsel (Applicant), dated 9 Feb 15, w/atch. Exhibit F. Letter, Member, dated 13 Feb 15, w/atchs. Exhibit G. Memorandum, AFPC/DPFFF, dated 9 Mar 15. Exhibit H. Letter, SAF/MRBR (Member’s Counsel), dated 3 Jun 15. Exhibit I. Letter, SAF/MRBR (Member), dated 3 Jun 15. Exhibit J. Letter, Counsel (Applicant), dated 25 Jun 15, w/atchs. 2 3