RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00195 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show that she is the former spouse beneficiary under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: In a two-page brief, through counsel, the applicant contends the following: Her former spouse intended for her to be the SBP beneficiary from the date of their divorce on 18 May 99, to the date of his death. Their divorce decree specifies that she is the beneficiary of the SBP. In May 99, her former spouse notified the Defense Finance Accounting Service (DFAS) of his election to change SBP spouse to former spouse coverage. The Board should consider her untimely application in the interest of justice because she did not discover the error until after the death of her former spouse. In support of her request, the applicant provides copies of the deceased member’s DD Form 214, Certificate of Release or Discharge from Active Duty; DH Form 1947, Certificate of Death; AF Form 1581, SBP Election Statement for Former Spouse Coverage and divorce decree. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 18 May 99, both parties divorced and the divorce decree ordered the decedent to continue the applicant as the SBP beneficiary. According to the AF Form 1581 dated in 1999, the applicant’s date of birth is 3 Dec 45. According to the former member’s death certificate dated 29 May 13, he was not married at the time of his death. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. The decedent and the applicant were married on 18 Aug 70, and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Nov 79, retirement. The youngest child lost eligibility in Aug 94. The applicant provided a copy of the AF Form 1581; however, DFAS-Cleveland (DFAS-CL) has no record of receipt of the form. The decedent did not request coverage for the applicant to be terminated following their divorce, indicative of his intent to maintain her as the eligible SBP beneficiary. To deny the applicant’s request would deny an asset awarded to her by the court. SBP premiums continued to be deducted from the decedent’s retired pay until 1 Jul 10, when the paid up SBP provision became effective. DFAS-CL records continued to erroneously reflect the applicant’s name as the eligible spouse beneficiary On 22 May 13, the decedent died. There is no evidence of Air Force error in this case and absent a competing claimant, we recommend the member's record be corrected to reflect on 19 May 99, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums. The complete DPFFF 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 21 Mar 14, for review and comment within 30 days (Exhibit C). As of this date this office has not received a 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case and find the applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. We note that DPFFF recommends approval; however, we have been advised by our Agency Legal Counsel that a potential exists for competing interests. In cases involving competing interests, this Board has been advised not to consider such cases unless a court of competent jurisdiction has ruled in the case or remands the case to the Board to make a determination. Therefore, we are precluded from granting the applicant the SBP benefit. However, we would like to point out that if the former member’s heir(s) were to provide a notarized consent relinquishing the benefit, or to complete the Survivor Benefit Program – Release of Arrears of Pay (AOP) Affidavit, we would be willing to reconsider the applicant’s request. Otherwise, the applicant’s only recourse is to return to a court of competent jurisdiction 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; 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-2014-00195 in Executive Session on 17 Feb 15 and 8 Jun 15, under the provisions of AFI 36-2603: Vice Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00195 was considered: Exhibit A. DD Form 149, dated 18 Dec 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 13 Mar 14. Exhibit C. Letter, SAF/MRBR, dated 21 Mar 14. Exhibit D. Letter, Counsel, dated 22 Sep 14 Exhibit E. Letter, SAF/MRBRA, dated 23 Sep 14. 4