RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03529 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: Her former spouse stopped the SBP, even though their divorce decree required that he maintain former spouse SBP. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was provided an advisory opinion (Exhibit C) prepared by SAF/GCM on similar cases considered by the Board. The Board has been advised that it can consider cases involving potential claims by more than one spouse or former spouse if there is evidence that the member or former spouse timely notified the Government within one year after the divorce was final, or if there are extraordinary circumstances that would justify correction of the record. For example, extraordinary circumstances might exist if the current spouse signs a notarized affidavit saying she waives her potential claim to the survivor benefits in favor of complying with the member’s obligations under the divorce agreement. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force which is at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR makes no recommendation. DPSIAR states that the service member and the applicant married on 5 Dec 62. Records from the Air Force Accounting and Finance Center (AFAFC) reflect the service member elected spouse only coverage based on full retired pay prior to his 1 Apr 88 retirement. The parties divorced on 1 Jan 98, and their agreement, incorporated by the court order, required the service member to maintain the applicant as his former spouse SBP annuitant. There is no evidence either party submitted a valid former spouse election during the first year following their divorce. The Defense Finance and Accounting Center-Cleveland Center (DFAS-CL) suspended the service member’s SBP coverage effective the date of their divorce, and premiums stopped being collected from his retired pay. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member and his current spouse married on 22 Jun 98. There is no evidence the service member requested SBP spouse coverage be established on her behalf; however, by operation of law his current spouse became the eligible spouse beneficiary on the first anniversary of their marriage. The service member died on 18 May 12. The decedent’s spouse has not applied for the SBP annuity which would be approximately $2,123 per month (after recovery of the retroactive SBP premium debt of more than $28,000 plus interest). The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 24 Sep 12 and 25 Mar 13, copies of the evaluations were forwarded to the applicant for review and comment within 30 days (Exhibits C and E). As of this date, this office has received no response. _________________________________________________________________ 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; however, we are not persuaded the applicant has sustained her burden of establishing the existence of either an error or injustice in the record. While we note the divorce decree awarded the applicant continued coverage under the SBP; neither the former service member nor the applicant submitted a valid election within the one-year period required by law to establish former spouse coverage. Because of this, by operation of law the former service member’s current spouse became the legal beneficiary of his SBP. We are not unsympathetic to the applicant’s dilemma; however, only in the most unique of circumstances would the Board make a ruling in a case that involves two claimants to a benefit that only one of them can receive. In view of the foregoing, 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-2012-03529 in Executive Session on 7 May 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Aug 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 11 Sep 12. Exhibit C. Letter, SAF/MRBR, dated 24 Sep 12. Exhibit D. Letter, SAF/GCM, dated 18 Oct 06. Exhibit E. Letter, AFBCMR, dated 25 Mar 13, w/atch.