RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02236 XXXXXXXXXX (DECEASED) COUNSEL: NONE XXXXXXXXXX (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show that he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She and her former spouse were not aware they were required to change SBP coverage from spouse to former spouse coverage. Although they were divorced, they maintained a very close relationship and he continued to pay SBP premiums with the full certainty that she would be the beneficiary of this entitlement. In support of her request, the applicant provides a personal statement, an Air Force Board for Correction of Military Records (AFBCMR) SBP Marital Status Affidavit, copies of Retiree Account Statements, divorce decree, the member’s death certificate, and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the Military Personnel Data System, the applicant retired from the Regular Air Force effective 1 February 2004. According to the Final Decree of Divorce the applicant and her former spouse divorced on 3 December 2008. The divorce decree did not address the SBP. According to an AFBCMR SBP Marital Status Affidavit notarized on 11 March 2015, the applicant has sworn/affirmed that neither she nor her former spouse was currently married. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. The Defense Enrollment Eligibility Reporting System indicates the applicant and the former member were married on 6 April 1993. The former member elected spouse and child SBP coverage based on full retired pay prior to his 1 February 2004 retirement. The parties divorced on 3 December 2008, and the divorce decree did not address the SBP. There is no evidence the former member voluntarily submitted a valid election to change spouse to former spouse coverage within the first year following their divorce as the law requires. Defense Accounting and Finance Service records continued to reflect the applicant's name and date of birth as the eligible spouse beneficiary and premiums continued to be deducted from the former member's retired pay until he was found deceased on 19 June 2013. The youngest child lost eligibility effective 1 July 2013 due to age. There is no evidence the former member remarried, and accordingly, there is no competing claimant. Although the member failed to submit an election to establish former spouse coverage, he did not request the applicant's coverage be terminated. There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the former member’s record be corrected to reflect on 4 December 2008, he elected to change SBP spouse and child coverage to former spouse and child coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 September 2014, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ADDITIONAL AIR FORCE EVALUATION: On 22 July 2015, the Secretary of the Air Force (SECAF) denied relief to two applicants seeking corrections from the AFBCMR to correct the records to show a timely election for SBP former spouse coverage was made. The SECAF memorandum stated, in part, that the AFBCMR cannot adequately investigate and rule on a matter when there are competing interests, and granting relief to the applicant would result in property being taken away from another party whose interests cannot be adequately represented in the AFBCMR process. The AFBCMR has consistently refused to grant relief to applicants when doing so would deprive another party of a benefit to which they are legally entitled, as could be the case here. The court, not the AFBCMR, is the appropriate venue to weigh competing interests while ensuring the legal interests of all parties are being protected, and stated that pertinent matters relating to a decedent's estate are best left to the State courts to resolve rather than the AFBCMR. The memorandum also noted that the SECAF’s decision did not preclude the applicant(s) from seeking reconsideration based on newly discovered relevant information or, better yet, from seeking redress through the appropriate court. A complete copy of the SECAF evaluation is at Exhibit D. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: In an email dated 23 October 2015, the applicant states that she has no further comment or evidence other than what she previously provided. The applicant’s complete response is at Exhibit F. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 required for this Board to grant relief in cases of competing interest. We note the OPR states that absent a competing claimant, they recommend 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, the Board would like to point out that if the former member’s heir(s) were to provide a notarized statement relinquishing their right to the Arrears of Pay or complete the attached Survivor Benefit Program – Release of Arrears of Pay (AOP) affidavit, the Board may be willing to reconsider her 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 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 this application in Executive Session on 6 May 2015 and 26 October 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02236 was considered: Exhibit A. DD Form 149, dated 25 May 2014, w/atchs. Exhibit B. Member’s Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 11 September 2014. Exhibit D. Letter, SAF/MRBR, dated 22 September 2014. Exhibit E. Memorandum, SECAF, dated 22 July 2015. Exhibit F. Email, SAF/MRBC, dated 23 October 2015 Exhibit G. Email, Applicant, dated 23 October 2015.