RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00317 (MEMBER) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former husband’s military records be corrected to reflect that former spouse coverage under the Survivor Benefit Plan (SBP) was deemed on her behalf. APPLICANT CONTENDS THAT: Spousal SBP coverage was terminated upon her divorce from the member; however, she and the member were unaware that she was supposed to sign a separate election form for Former Spouse SBP coverage. Her former spouse provided copies of the divorce decree to the Military Personnel Flight (MPF) as well as the Defense Finance and Accounting Services (DFAS) but no advice was given on how to continue the SBP coverage as required by the divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System (MILPDS), on 30 Sep 02, the member was released from active duty and retired effective 1 Oct 02. On 25 Feb 15, the AFBCMR SBP Marital Status Affidavit was forwarded to the applicant. She provided a signed and notarized affidavit, dated 3 Mar 15, indicating that on 17 Feb 86, she and the member were married and on 14 Sep 10, they divorced. She also indicated that she is currently not married and her former spouse is married (Exhibit D). On 25 Feb 15, the AFBCMR SBP Marital Status Affidavit – Retiree and the SBP – Release of Benefits Affidavit were forwarded to the member. As of this date, no response has been received by this office (Exhibit E). According to the divorce decree provided by the applicant, on 21 Sep 10, the marriage was dissolved and the separation agreement, dated 19 Jul 10, was approved and incorporated as part of the decree. The decree states in part that the member shall name the applicant as sole beneficiary of the SBP or ensure survivorship benefits are in place so the applicant receives her share of the plan. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit F. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval indicating there is no evidence of an error and absent a competing claimant, it would be appropriate to enforce the court ordered agreement to continue SBP coverage, an asset the court apparently intended to award on the applicant's behalf. 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 DFAS-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. There is no evidence the applicant or the member submitted a valid former spouse election within the first year following their divorce as the law requires. DFAS-CL suspended the spouse portion of the SBP retroactive to the date of divorce, and refunded the overpaid premiums after receiving the member's DD Form 2656-6, SBP Election Change Certificate, dated 24 Sep 10, to suspend spouse coverage. In Aug 11, the youngest child lost eligibility due to age. The Defense Eligibility Reporting System (DEERS) records show that on 14 Jun 14, the member married his current wife. The member’s current wife will not become a potential SBP beneficiary until the first anniversary of their marriage; therefore, there is no competing claimant. DPFFF recommends the member's record be corrected to show that the applicant submitted a valid request that former spouse coverage based on full retired pay be deemed on her behalf effective 22 Sep 10. Correction should be contingent upon recovery of appropriate retroactive costs. A complete copy of the AFPC/DPFFF evaluation, with attachments, is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and the member on 9 Jul 15 for review and comment within 30 days (Exhibits G and H). 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’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 applicant contends that the divorce decree awarded her continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. We also note that DPFFF has recommended approving the applicant’s request, however, at that time, the former member and his current spouse had not been married one year; therefore, there was no competing interest. However, as of 14 Jun 15, the former member’s current spouse became a potential SBP beneficiary. 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 applicant the SBP benefit. Absent a notarized statement from the current spouse relinquishing her entitlement, we find no basis to grant the applicant’s request. 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-2015-00317 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Jan 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR (Applicant), dated 25 Feb 15. Exhibit D. Letter, SAF/MRBR (Member), dated 25 Feb 15. Exhibit E. Affidavit, Applicant, dated 3 Mar 15. Exhibit F. Memorandum, AFPC/DPFFF, dated 20 Mar 15, w/atchs. Exhibit G. Letter, SAF/MRBR (Applicant), dated 9 Jul 15. Exhibit H. Letter, SAF/MRBR (Member), dated 9 Jul 15.