RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03585 INDEX CODE: 137.00 XXXXXXX (Deceased) COUNSEL: NONE (XXXXXXX) HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: Her former husband’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity with maximum benefits under the SBP. _________________________________________________________________ APPLICANT CONTENDS THAT: SBP Benefits were not received when retired pay stopped. Her complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and the decedent were married on 11 March 1969, and the decedent elected spouse-only SBP coverage based on full retired pay prior to his 1 August 1989 retirement. The parties divorced on 26 April 1993 and in the property settlement agreement he agreed to provide his former spouse with maximum SBP coverage. There is no evidence that either party submitted a valid former-spouse election within one year following their divorce. The decedent married ------ on 16 June 1993 and she became the eligible spouse beneficiary on the first anniversary of their marriage. Records reflect the decedent died on 21 January 1995 and ------ begin receiving a monthly annuity. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates that since the request involves two potential SBP beneficiaries. No recommendation is provided (Exhibit B). The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor states that in accordance with federal law, the member’s current spouse is the eligible beneficiary unless there has been a legally effective election or deemed election pursuant to a court order. If there were not a competing eligible beneficiary, the BCMR Legal Advisor would recommend correcting the record, but there is. The BCMR Legal Advisor would recommend correcting the record if the member’s surviving spouse gave her notarized consent. Accordingly, the BCMR Legal Advisor sees no extraordinary circumstances that would support not enforcing the deemed election requirement giving the fact correcting the record in the manner requested will deprive the former member’s current spouse benefits to which she is legally entitled. The BCMR Legal Advisor states if the panel is inclined to grant the remedy, it should not reach a final decision until the view of the current spouse is solicited and considered. The complete BCMR Legal Advisor evaluation is attached at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force and the BCMR Legal Advisor evaluations were forwarded to the applicant on 17 November 2008, for review and response within 30 days. As of this date, this office has received no response. (Exhibit D). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant’s complete submission was thoroughly reviewed and her contentions were duly noted. However, we do not find her assertions and the documentation presented in support of her appeal sufficiently persuasive to override the rationale provided by the BCMR Legal Advisor. In this respect, we took note of the divorce decree that ordered the decedent to provide SBP coverage for his former spouse. However, we also noted that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by the law. We are aware that in extraordinary circumstances, it is within our authority to correct a record if we find it necessary to prevent an error or injustice. However, in this case, we agree with the Legal Advisor that there are no extraordinary circumstances here that support not enforcing the deemed election requirements given that the fact that a correction of the record in the manner requested would deprive the decedent’s current spouse of the benefits to which she is legally entitled. However, if the decedent’s current spouse submits a notarized statement relinquishing her entitlement to the SBP, we would be willing to reconsider the appeal. In view of the foregoing, we find no compelling basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of an error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC- 2008-03585 in Executive Session on 6 January 2009, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 September 2008, w/atchs. Exhibit B. Letter, HQ AFPC/DPP, dated 29 October 2008. Exhibit C. Letter, BCMR Legal Advisor, dated 12 November 2008. Exhibit D. Letter, AFBCMR, dated 17 Nov 08, w/atchs.