RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04515 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Survivor Benefit Plan (SBP) election be changed to cover his former spouse. _________________________________________________________________ APPLICANT CONTENDS THAT: His divorce decree directed he provide SBP benefits to his former spouse. However, he was unaware he had to specify a former spouse designation within one year of his divorce. In support of his appeal, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; two Retiree Account Statements; and his divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Idaho Air National Guard who was progressively promoted to the grade of senior master sergeant (E-8) effective 15 February 1990. According to the DD Form 214 provided by the applicant, he was released from active duty on 30 September 1995 and retired effective 1 October 1995, for retirement with less than 20 years service under the Temporary Early Retirement Authority (TERA). The remaining relevant facts, extracted from the member’s military service records, are contained in the Air Force advisory opinion at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: DFAS-RPB-TQAL/CL (Defense Finance and Accounting Service, Legislation and Policy, Retired and Annuity Pay) recommends denial. DFAS states that at the time of the applicant’s retirement, he elected coverage for his then spouse. On 10 April 1996, he and his former spouse divorced. The divorce decree directed he provide SBP coverage for his former spouse. However, neither the applicant, nor his former spouse ever contacted DFAS until 2010 regarding their divorce and court-ordered SBP election. As this was well after the one year period specified in law to make a former spouse SBP election, the request was denied. DFAS indicates that should the Board correct the record to show that a timely former spouse election was made; the coverage will be retroactively established. The complete DFAS evaluation is at Exhibit B. _________________________________________________________________ BCMR LEGAL CONSULTANT EVALUATION: The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor states the applicant has provided little information with his application, but it appears from his Retiree Account Statement that he is married. If he has been married to his second spouse for a year, that person is legally entitled to SBP despite the court order. Although the Air Force Deputy General Counsel for Military Affairs has advised the AFBCMR that it can, in extraordinary cases, change the record to provide SBP to the first spouse when there is a second spouse legally entitled to it; the Administrative Law Division of the Office of the Judge Advocate General has also consistently advised that the matter of SBP entitlement between competing spouses should be referred to civilian courts for resolution. The BCMR Legal Advisor states that if there were not a competing eligible beneficiary, he would recommend correcting the record. He would also recommend correcting the record if the second spouse gives her notarized consent. Absent that consent, he sees no extraordinary circumstances here that would support not enforcing the deemed election requirement given the fact that correcting the record in the manner requested will deprive the second spouse of SBP coverage to which she is legally entitled. He would remind the Board if they are inclined to grant the requested relief, they should not reach a final decision until the view of the second spouse is solicited and considered. The complete BCMR Legal Advisor’s evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE AND BCMR LEGAL CONSULTANT’S EVALUATIONS: The applicant responds with numerous questions that would be more appropriately answered by the Air Force office of primary responsibility or DFAS, once the Board has rendered a decision on his appeal. The applicant’s complete response is at Exhibit F. _________________________________________________________________ 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 error or injustice. We took notice of the applicant’s complete submission in judging the merits of this case; however, we agree with the opinion and recommendation of BCMR Legal Advisor and adopt his rationale as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either 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-2010-04515 in Executive Session on 9 August 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-04515: Exhibit A. DD Form 149, dated 30 Nov 10, w/atchs. Exhibit B. Letter, DFAS-RPB-TQAL/CL, dated 11 Jan 11. Exhibit C. Letter, SAF/MRBR, dated 18 Feb 11. Exhibit D. Letter, BCMR Legal Advisor, dated 18 Mar 11. Exhibit E. Letter, AFBCMR, dated 24 Mar 11. Exhibit F. Letter, Applicant, dated 7 Apr 11.