RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02623 COUNSEL: NONE 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: She was not aware a form was needed for the SBP annuity after their divorce. It was not until she recently researched the program that she learned about this additional form. Upon retirement, her former spouse was told that she would never be removed as the beneficiary. Additionally, the divorce decree designated her SBP beneficiary. In support of her request, the applicant provides a copy of the divorce decree and marriage certificate. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The service member retired effective 1 February 2008. Data extracted from the Defense Enrollment Eligibility Reporting System (DEERS) reflect the applicant and the member divorced on 26 August 2010. DEERS also reflects the member remarried on 12 February 2012. The Board has been advised that it should not consider cases involving potential disputed claims unless a court of competent jurisdiction has ruled in the case or pushes the AFBCMR to make a determination in the case. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: DFAS recommends denial. The member retired from the Air Force on 1 February 2008. At the time of his retirement, he elected spousal coverage for the applicant, to whom he was married. The applicant and the member divorced on 26 August 2010. According to the final decree of divorce, the member is court ordered to maintain the applicant as a former spouse beneficiary for SBP. The member did not inform DFAS that he was divorced and did not change his election from spouse to former spouse coverage. DFAS was only notified of the divorce upon receipt of this application. A spouse loses eligibility as the SBP beneficiary upon divorce. There is no provision that makes former spouse coverage an automatic benefit. The only means by which the divorced spouse can become an SBP beneficiary is if a former spouse coverage is elected by the service member or a deemed election is made on the basis of a court order. A court order by itself cannot be used to issue coverage. Although the divorce decree does award the SBP to the applicant, there was never a deemed election by her, or her attorney on her behalf within one year of the divorce. According to law, DFAS cannot provide former spouse SBP coverage without a deemed election from the former spouse or her attorney on her behalf within one year from the date of the final divorce or an election change request from the member. The premium costs for SBP have continued to be deducted from the member’s monthly military retired pay. Based on this application, DFAS was required to change his SBP election to no beneficiary and refund the premiums from the first month following the divorce. Should the Board approve this application; those premiums will need to be collected from the members military retired pay account. The complete DFAS evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to a request for a Marital Status Affidavit, the applicant submits that she is not currently married and that her former spouse is married. (Exhibit E) The member has not responded. ________________________________________________________________ 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. We took notice of the applicant’s complete submission in judging the merits of the case; however, the applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. While we do not take issue with the applicant’s assertion that her divorce decree ordered her former husband to continue coverage for her under SBP, she failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure to effect the former spouse coverage, we can only grant the relief sought if the former member’s spouse provides notarized consent relinquishing the benefit. Otherwise, the applicant’s only recourse is to return to a court of law to have the issue decided. 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 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 AFBCMR Docket Number BC-2013-02623 in Executive Session on 7 August 2014, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02623 was considered: Exhibit A. DD Form 149, dated 25 May 13, w/atchs. Exhibit B. Member’s Military Personnel Record. Exhibit C. Letter, DFAS, dated 18 Jun 13. Exhibit D. Letters, SAF/MRBR, dated 5 Aug 13. Exhibit E. Letters, SAF/MRBC, dated 9 May 14. 1