RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03308 COUNSEL: HEARING DESIRED: NO ___________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased former spouse’s military record be changed to show he made a timely Survivor Benefit Plan (SBP) election for former spouse coverage. __________________________________________________________________ APPLICANT CONTENDS THAT: She should be given favorable consideration to be awarded the former member’s SBP under Public Law 98-94 dated 24 Sep 83. In support of her request, the applicant provides a copy of a Defense Finance and Accounting Service (DFAS) printout, a copy of the former member’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, a copy of the former member’s death certificate, a copy of her marriage license, and a copy of her divorce decree. Her complete submission, with attachments, is at Exhibit A. __________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. __________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation because it involves two potential SBP beneficiaries. The DPSIAR complete evaluation is at Exhibit B. The AFRBA Legal Advisor recommends denial and states in part that despite the Jan 88 court order directing the member to convert to former spouse coverage, federal law makes the election unavailable when the deemed election is not timely filed. In this case, there is no evidence either party requested SBP coverage within one year of the divorce as required by law. If there were not a competing eligible beneficiary, the AFRBA Legal Advisor would recommend correcting the record, but there is. The AFRBA Advisor would also recommend correcting the record if the current spouse gives her notarized consent. Absent that consent, no extraordinary circumstances exist that support not enforcing the deemed election requirement given the fact that correcting the record in the manner requested will deprive the member’s current spouse benefits to which she is legally entitled. The complete AFRBA Legal Advisor evaluation is at Exhibit C. __________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluations were forwarded to the applicant on 30 Nov 10 for review and comment within 30 days. As of this date, this office has received no response. __________________________________________________________________ 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. After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that the former member’s records should be changed to make the applicant an eligible former spouse SBP beneficiary. We note neither the applicant, nor the former member filed the necessary SBP election applications that would have provided the former spouse SBP coverage within the one-year time frame allotted them to do so. Therefore, we agree with the opinion and recommendation of the SAF/MRB legal advisor and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice, and 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-2010-03308 in Executive Session on 10 Feb 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Aug 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 7 Oct 10. Exhibit C. Letter, SAF/MRB, dated 23 Nov 10. Exhibit C. Letter, SAF/MRBR, dated 30 Nov 10.