RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01662 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be allowed to make a former spouse election under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: The SBP reads spouse; however, it should read former spouse in accordance with their divorce. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The former member retired from the Air Force on 1 March 2001. 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/DPFFF does not provide a recommendation as the application involves two potential SBP beneficiaries. The applicant was married to the former service member on 8 September 1980. Prior to his 1 March 2001 retirement, the former member elected spouse and child SBP coverage based on full retired pay. The parties divorced on 21 February 2008 and in the separation agreement, which was incorporated into the divorce decree, the former member agreed to maintain SBP for the applicant. However, there is no evidence either party submitted a valid former spouse election within the first year following the divorce, as the law requires. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the former member remarried on 30 April 2009, but he did not notify the finance center of the change in his marital status or request that spousal coverage be established on her behalf. By operation of law, the current spouse became the eligible spouse beneficiary on the first anniversary of their marriage. The complete DPFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant has no additional evidence to submit but states that it was the intent of all parties that she and the children remain beneficiaries of the SBP. She has paid half of the premiums and was unaware there was a form that she needed to complete. The applicant submitted an affidavit attesting to the fact that she and her former spouse were marred on 9 September 1980. They divorced on 21 February 2008. She did not indicate whether or not she was remarried; however, she did attest that her former spouse is remarried. The applicant’s complete response, with attachment, is at Exhibit D. On 26 April 2014, SAF/MRBR sent the former member a request to return a notarized SBP marital status affidavit and SBP release of benefits affidavit within 30 days (Exhibit E). As of this date, the former 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. 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. While we note the divorce decree awarded the applicant continued coverage under SBP, neither she nor the former member made a deemed election within one year as required by law. Since it appears the former service member’s second spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the applicant the SBP benefit. Absent the current spouse relinquishing her entitlement or the former member executing the appropriate steps required to remove his current spouse as SBP beneficiary, we find no basis to grant the applicant’s request. 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-2014-01662 in Executive Session on 12 June 2015, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Apr 14, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 11 Jun 14. Exhibit C. Letter, SAF/MRBR, dated 30 Sep 14. Exhibit D. Letter, Applicant’s Response, undated, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 26 Apr 14, w/atch.