RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02149 (SERVICE MBR) COUNSEL: (APPLICANT) HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: The divorce decree ordered that she be maintained as the former spouse beneficiary for the SBP. She was not aware she had to submit a deemed election. In support of her request, the applicant provides a statement of counsel, a copy of the divorce decree, and a supporting statement from the service member indicating his consent and requesting the applicant’s request be granted. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The former service member elected spouse and child coverage under the SBP based on full retired pay prior to his 1 Nov 04 retirement. On 17 Jul 08, the applicant and the service member were divorced; the divorce decree required the applicant be maintained as the beneficiary for the SBP. There is no evidence the applicant or the service member submitted an election for former spouse coverage under the SBP within one year following their divorce. The service member remarried on 30 Aug 08. There is no evidence the service member submitted a request for spouse coverage on his current spouse’s behalf. However, she became the eligible spouse beneficiary as a matter law on the first anniversary of their marriage. On 26 Jan 12, the Board staff notified the current spouse of the pending application before the Board which may affect her interests. Copies of the AFPC/DPSIAR advisory opinion described below, as well as legal opinions prepared by HQ USAF/JAA and SAF/GCM pertaining to the issue of competing spouse claimants for SBP benefits were also provided for review and response within 30 days (Exhibit C). In response, she indicates that she does not relinquish her right as the beneficiary of the SBP. She believes it was the responsibility of her husband’s former spouse and attorney to submit the election for SBP within the time allotted, not her husband (Exhibit D). _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR indicates that based on guidance from the AFBCMR, they provide no recommendation since the request involves two potential beneficiaries, and based on the guidance by the AFBCMR, it did not provide a recommendation. The complete AFPC/DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation and the HQ USAF/JAA and SAF/GCM legal opinions were forwarded to applicant and Counsel on 14 Mar 12 for review and comment within 30 days. As of this date, no reply has been received by this office (Exhibit E). _________________________________________________________________ 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 injustice. The applicant has not demonstrated that extraordinary circumstances exist that constitute a basis 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 and do not take issue with the applicant’s assertion that the Court, in the divorce decree, ordered the former service member to continue coverage for her under SBP. However, in violation of the Court’s order, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. 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 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-2011-02149 in Executive Session on 24 Apr 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jun 11, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 14 Jul 11. Exhibit C. Letter, AFBCMR, dated 26 Jan 12, w/atchs. Exhibit D. Letter, Current Spouse, dated 30 Jan 12, w/atchs. Exhibit E. Letter, AFBCMR, dated 14 Mar 12.