RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00982 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The decedent’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: Their divorce decree awarded her beneficiary to the SBP. In support of her request, the applicant provides copies of her divorce decree, the decedent’s death certificate and his DD Form 214, Certificate of Release or Discharge from Active Duty. Applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 Nov 78, the service member contracted his initial enlistment in the Regular Air Force. He served as an Aerospace Ground Equipment Craftsman. He retired on 1 Dec 98. He served 20 years, and 24 days of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force which is attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR states that based on guidance issued by the AFBCMR they forwarded this application without a recommendation because it involves two potential SBP beneficiaries. The complete AFPC/DPSIAR evaluation is at Exhibit C. The SAF/MRB Legal Advisor recommends denial. The Legal Advisor states that despite the court order directing the member to convert to former spouse coverage, federal law makes the election unavailable when the deemed election is not timely effected. If there were not a competing eligible beneficiary, or there was notarized consent of the current spouse, he would recommend correcting the record, but there is a competing spouse and no consent. He sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in this manner will deprive the current spouse of benefits to which she is legally entitled. The complete SAF/MRB Legal Advisor’s evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 23 Jun 10, for review and comment within 30 days. 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 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 an injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion that the applicant has failed to sustain her burden of proof of the existence of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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 material 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 AFBCMR Docket Number BC-2010-00982 in Executive Session on 14 Sep 10, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Mar 10, w/atchs. Exhibit B. Applicant’s Military Personnel Records. Exhibit C. Letter, HQ AFPC/DPSIAR, dated 10 May 10. Exhibit D. Letter, SAF/MRB Legal Advisor, dated 21 Jun 10, w/atchs. Exhibit E. Letter, AFBCMR, dated 23 Jun 10, w/atchs.