RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00737 (FORMER MEMBER) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s record be corrected to reflect she is the former spouse beneficiary under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: According to the divorce decree, her former spouse was to maintain SBP coverage for her as the former spouse beneficiary. He has not provided proof that he has done so in accordance with the requirements of the decree. In support of her request, the applicant provides copies of court documents related to her divorce from the former service member. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application, extracted from the former member’s military personnel records, are described in the letters prepared by the appropriate office of the Air Force and the AFBCMR Legal Advisor, which are at Exhibits B and C. Therefore, there is no reason to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates the former service member and the applicant were married on 12 Apr 80 and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Aug 96 retirement. Their divorce was finalized on 3 Jan 07, and in the separation agreement, incorporated in the divorce decree, the member agreed the applicant would be deemed as the irrevocable beneficiary of the SBP. However, there is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. The member married XXXXXX on 8 Sep 07, but did not notify DFAS of the change in his marital status or request spouse coverage be established on her behalf. Nevertheless, XXXXXX became the eligible spouse beneficiary by operation of the law on the first anniversary of their marriage. Premiums for spouse SBP coverage continued to be deducted from the former service member’s retired pay until 18 Nov 10, when DFAS-CL updated the member’s beneficiary information and issued him a refund of premiums deducted after the divorce. Coverage was retroactively reinstated, effective 8 Sep 08, naming XXXXXX as the eligible spouse beneficiary. XXXXXX would receive $1,093.00 per month in the event of the former service member’s death. A complete copy of the AFPC/DPSIAR evaluation is at Exhibit B. The AFBCMR Legal Advisor recommends denial, indicating there are no extraordinary facts or equities which merit granting the requested relief, unless the competing spouse relinquishes her rights. The applicant provides little to no evidence of an error on behalf of the Air Force or DFAS. The only claim of injustice is the applicant is “not named as the beneficiary according to the divorce decree.” Even if the member did not comply with the court order, the applicant had the opportunity herself to request a “deemed election” within one year of the divorce (AFI 36-30-06, paragraph 6.4.6; and 10 USC 1450(f)(3)). A complete copy of the AFBCMR Legal Advisor evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant contends that she had no idea that she was required to provide a written valid former spouse election. She believed her divorce decree to be a legal document that would protect her rights. Secondly, her former spouse would have no inclination to submit paperwork on her behalf or inform her of the need for this documentation. If she had known about this requirement, she would have never jeopardized her potential future income by neglecting to submit proper documentation. ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission, including her response to the advisory opinions, in judging the merits of the case; however, we agree with the opinion and recommendation of the AFBCMR Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis for us to recommend granting the relief sought in this application. ________________________________________________________________ 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-2011-00737 in Executive Session on 6 Dec 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Feb 11, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 24 Mar 11. Exhibit C. Letter, SAF/MRB Legal Advisor, dated 2 Nov 11. Exhibit D. Letter, AFBCMR, dated 3 Nov 11. Exhibit E. Letter, AFBCMR, dated 29 Nov 11. Exhibit F. Electronic Mail, Applicant, dated 29 Nov 11. Panel Chair