RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02121 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s record be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: She was married to her former late spouse for 20 years and she thoroughly enjoyed military life. She states his current spouse was not married to him during his military career nor did she raise his three children or work so he could get his degree. She believes she is more deserving of the benefits than his current spouse. In support of her request, the applicant submits personal statements, documentation from DFAS and DD Form 2789, Waiver/Remission of Indebtedness Application. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The decedent and his former spouse were married on 12 February 1966. The decedent retired on 1 April 1989 and elected spouse and child SBP coverage based on full retired pay. They divorced on 17 March 1993. On 28 June 1993, the decedent requested the petitioner be removed as his SBP beneficiary. The decedent married his second spouse on 18 September 1993 and on 10 April 1994 he requested DFAS add her to the plan. They divorced on 17 April 1995. The decedent married his third spouse on 27 April 1995 and on 12 November 1996 he requested that DFAS-CL establish SBP coverage for her. The decedent died on 9 April 2011. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR makes no recommendation. DPSIAR states, the applicant’s and the decedent’s Voluntary Separation and Property Settlement Agreement, incorporated in the divorce decree, contained language that if the applicant wishes to retain the survivor annuity, she had to pay the full cost of the annuity, which was to be deducted in full from her share of his military pension. Currently, there is no legal basis for SBP premiums to be paid by a former spouse. There is no evidence either party submitted a valid former spouse election during the first year following their divorce. On 28 June 1993, the former service member requested the applicant be removed as his SBP beneficiary. The former service member died on 9 April 2011 and his widow is currently receiving a monthly SBP annuity of $1,175.00 The DPSIAR complete evaluation is at Exhibit B. SAF/MRB Legal Advisor recommends denial. The Legal Advisor states there are no extraordinary facts or equities which merit granting the requested relief, unless the competing spouse/widow relinquishes her rights to the SBP annuity. This opinion is consistent with longstanding AFBCMR and SAF/MR decisions in similar cases. While a court is well suited to resolve disputes between competing parties, the AFBCMR is not. He also notes that the applicant provides no claim of error on behalf of the Air Force or DFAS. All inference of error or injustice falls upon the actions or inaction of applicant and decedent spouse. Nothing in the case file supports taking the entitlement from the widow entitled to the SBP and granting to the former spouse, without the benefit of a judicial hearing. The SAF/MRB Legal Advisor’s complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the current spouse of her deceased former spouse never spent a day with him during his military career but is reaping the benefits that she earned. She is in debt to the Air Force for $3,537.00 all of which is accruing interest. She holds the Air Force and DFAS totally responsible for this situation. She feels the decision to deny her SBP is unjust. She has been receiving her former spouse’s pension since 1993, she has a military ID card and TRICARE insurance - all three of which she has earned. She is being denied SBP because of a mistake DFAS and the Air Force has made by not upholding Air Force regulation (if you are married to a military man/woman for 15 years or more you are entitled to all benefits). Applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ 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. The applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. We took notice of the applicant’s complete submission in judging the merits of the case. We do not take issue with the applicant’s assertion that she believes she is deserving of the SBP annuity. However, in the absence of evidence that there was a “deemed election” by the applicant within one year after the divorce, the Board assumes the former service member’s current spouse gained entitlement to the benefit by operation of law. Since the applicant has failed to demonstrate that extraordinary circumstances exist that would justify correction of the record by this Board, we can only grant the relief sought if the applicant provides proof of a timely election or the former service member’s current spouse provides notarized consent relinquishing her entitlement to the benefit. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an 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-2011-02121 in Executive Session on 29 March 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02121 was considered: Exhibit A. DD Form 149, dated 31 May 2011, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 1 August 2011. Exhibit C. Letter, SAF/MRB, dated 7 March 2012. Exhibit D. Letter, AFBCMR, dated 8 March 2012. Exhibit E. Letter, Applicant, dated 12 March 2012, w/atchs.