RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04870 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Corrective action be taken to reflect her former spouse elected former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: 1. She did not “deem an election” for former spouse coverage because she was not aware of the “one year” period. 2. Korean is her primary language, not English. However, she can read and write English but it is very basic. 3. She missed the cutoff date to have “deemed an election” for former spouse coverage by three months. There was a miscommunication; she thought she had one year from the date her former spouse signed the DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage to comply, not one year from the date of the divorce. In support of her request, the applicant provides copies of a completed DD Form 2656-1; DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election, Defense Finance and Accounting Service (DFAS) memorandum, and her divorce decree. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 4 Feb 88, the applicant and former spouse were married and he elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Nov 06 retirement. On 30 Mar 10, the parties divorced and the divorce decree ordered that the applicant remain the SBP beneficiary. However, neither party submitted a valid election change during the first year following the date the divorce was finalized. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR is forwarding the request without a recommendation because it involves two potential SBP beneficiaries. On 23 Nov 11, the member’s retired pay account was updated to remove the applicant as his spouse SBP beneficiary and coverage and premiums were suspended. Defense Enrollment Eligibility Reporting System (DEERS) records reflect the member and his current spouse were married on 25 Apr 10. By law, the member’s current spouse became the eligible beneficiary on the first anniversary of their marriage. DPSIAR cannot confirm if the applicant has remarried. The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 13 Jan 12. In addition, copies of the SAF/GCM memorandum, dated 18 Oct 06 and Air Force evaluation were forwarded to the applicant, former spouse and current spouse on 3 Jul 12 for review and comment within 30 days. As of this date, this office has received no response (Exhibit D). _________________________________________________________________ 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. The applicant has not demonstrated that extraordinary circumstances exist as 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. While we note the divorce decree awarded the applicant continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. Since it appears the former service member’s second spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the applicant the SBP benefit. However, if the legal beneficiary submits a notarized statement relinquishing her entitlement to the SBP, the Board may be willing to reconsider the applicant’s appeal. Therefore in view of the above 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 Docket Number BC-2011-04870 in Executive Session on 21 Sep 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Nov 11, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 3 Jan 12. Exhibit C. Letter, SAF/MRBR, dated 13 Jan 12. Exhibit D. Letter, SAF/MRBC, dated 3 Jul 12, w/atchs.