RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04358 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her late husband’s Survivor Benefit Plan (SBP) election date for former spouse coverage be changed to reflect 26 Feb 02 rather than 12 Mar 02 and she be entitled to SBP. APPLICANT CONTENDS THAT: She completed the SBP Election statement and faxed it to the Defense Finance and Accounting Service - Cleveland Center (DFAS- CL) to change the coverage to former spouse, on 26 Feb 02, within one year of the divorce. However, DFAS records reflects receipt of the election form, on 12 Mar 02, which was more than a year after their 27 Feb 01 divorce. In support of her appeal, the applicant provides copies of the decedent’s death certificate; the Election Statement for Former Spouse Coverage, signed by her and the decedent, and the now obsolete DD Form 1882, Suvivor Benefit Plan Election Change (Former Spouse). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the documents provided by the applicant, on 26 Feb 02, the election form was faxed to DFAS-CL. According to the death certificate, on 26 Oct 13, the decedent passed away and was survived by his current spouse; not the applicant. AIR FORCE EVALUATION: AFPC/DPFFF did not provide a recommendation since it involves two potential SBP beneficiaries. The applicant and the decedent were married on 23 Jun 84, and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Sep 00 retirement. The parties divorce on 27 Feb 01, and in the Property Settlement Agreement, incorporated in the divorce decree, the decedent agreed the applicant would be the beneficiary to the SBP. He submitted DD Form 1882, for former spouse and child coverage; however, DFAS-CL did not honor the election because it was not received until after the one-year eligibility period. DEERS records show the applicant married (his second spouse) on 20 Apr 01, and they divorced on 21 Dec 09; however, there is no evidence the applicant requested DFAS-CL establish SBP coverage on her behalf. DEERS records show the decedent married (surviving spouse) on 16 Aug 10, but he did not notify DFAS-CL of the change in his marital status nor request that spouse coverage be established on her behalf. DFAS-CL records erroneously reflect the applicants name and date of birth (25 Apr 63) as the eligible spouse beneficiary; however, the (surviving spouse) became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. The youngest child lost eligibility Jul 12 due to age. SBP spouse premiums were deducted from the member's retired pay until his 26 Oct 13 death. The decedent's widow is eligible to receive an SBP annuity of $1000, but she has not yet applied for the benefit. The complete DPFFF evaluation is attached at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates her original contentions that the DD Form 1882 was submitted prior to the expiration of the one year following divorce. Contact with DFAS after the decedent’s passing revealed the Mar 01 receipt date was actually the log-in date. The decedent did not request spousal coverage following his subsequent marriages, which signifies his wishes to honor her entitlement to the SBP annuity. In support of her appeal, the applicant provides a copy of the divorce decree. The applicant’s complete response, with attachments, is at 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case, including her response to the Air Force evaluation. The applicant asserts that the divorce decree issued to her and the deceased former member awarded her benefits under SBP. However, while the applicant contends the election for former spouse coverage was made within the required time, no evidence has been provided, to our satisfaction, that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. Aside, as noted by the Air Force office of primary responsibility, we have been advised by our Legal Advisor, federal law makes the election unavailable when the deemed election is not timely effected. Further complicating this case is the fact that after divorce, the decedent remarried, by operation of law, the decedent’s widow became the legal beneficiary and entitled to the SBP benefits. Consequently, this is now a case involving two or more claimants to a benefit that only one can receive. Since there has been no ruling by a court of competent jurisdiction regarding this issue, we do not find that any basis exists for us to decide this case at this time. Should the applicant be able to provide additional documentation to substantiate her claim, we may be willing to reconsider her appeal. In view of the above and in the absence of evidence to the contrary, we must deny the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified 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-2014-00704 in Executive Session on 28 Jan 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-00704 was considered: Exhibit A. DD Form 149, dated 10 Feb 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 30 Apr 14. Exhibit C. Letter, SAF/MRBR, dated 15 May 14. Exhibit D. Letter, Applicant, dated 4 Jun 14, w/atchs.