RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02998 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: By decree of divorce, she was named a partial beneficiary of her former spouse’s survivor benefits. She agreed to the conversion of the SBP election from “Spouse Only,” to “Former Spouse” coverage. However, she was not aware she had one year from the date of their divorce to submit a deemed election. In support of her request the applicant provides copies of her Certificates of Marriage, information regarding the member’s retirement ceremony, Final Judgment and Decree of Divorce. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The SBP was established by Congress effective 21 Sep 1972 (Public Law (PL) 92-425) to provide a monthly income to survivors of retired military personnel upon the member's death when retired pay stops. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF does not provide a recommendation because it involves two potential SBP beneficiaries. They do note that Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and the member married on 4 Dec 1967. The member retired effective 1 Feb 1983 and elected spouse and child SBP coverage based on a reduced amount of retired pay. The parties divorced on 9 Nov 1988, and the divorce decree ordered the member to name the applicant and his children as the beneficiaries of the SBP annuity. However, there is no evidence either party submitted a valid former spouse election during the required time following their divorce. On 15 Aug 1989, the member married his current spouse. However, he did not notify the Defense Finance and Accounting Service - Cleveland Center (DFAS-CL) of the change in his marital status or request that spouse coverage be established in his new spouse’s behalf. Nevertheless, she became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage. DFAS-CL records erroneously reflect the applicant's name and date of birth as the eligible spouse beneficiary and SBP premiums continued to be deducted from the member's retired pay until 1 Feb 2013, when he met the "paid-up" requirements authorized under Public Law 105.26. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ FORMER MEMBER’S REVIEW OF THE AIR FORCE EVALUATION: DPFFF incorrectly lists his divorce date as 9 Nov 1988 when in fact the correct date is 9 Nov 1987. On 25 Oct 1989, he contacted DFAS and requested that SBP be reinstated for his new spouse and to maintain coverage for his two minor children. He never received a response. His ex-spouse did not take the action required to enroll in SBP within the required timeframe and he subsequently took action to make his new spouse the SBP beneficiary. The member’s complete response, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 4 Mar 2014, a copy of the SAF/GCM memorandum was forwarded to the applicant for review and comment within 30 days. As of this date, this office has received no response (Exhibit F). ________________________________________________________________ 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. We took notice of the applicant’s complete submission in judging the merits of the case; however, the applicant has failed to sustain her burden that she has suffered either an error or injustice. Neither the applicant nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage. Although the AFBMCR has the authority, it should not rule on a dispute between two claimants to a benefit that only one of them can receive. Furthermore, it is not appropriate for the Board to adjudicate such a dispute since that task is more properly left to the courts. In view of the foregoing, 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 this application in Executive Session on 24 Apr 2014, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered in AFBCMR BC-2013-02998: Exhibit A. DD Form 149, dated 13 Jun 2013, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 22 Jul 2013. Exhibit C. Letters, SAF/MRBR, dated 15 Aug 2013. Exhibit D. Letter, Member, dated 3 Sep 2013, w/atch. Exhibit E. Letter, SAF/GCM, dated 18 Oct 2006. Exhibit F. Letter, SAF/MRBC, digitally signed 4 Mar 2014. 1 2