RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02658 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s record be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: According to the terms of the court order and divorce decree, she was awarded the continuance of the SBP annuity. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant and the former service member were married on 9 February 1971 and he elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 May 1992 retirement. The applicant and the former service member divorced on 30 October 1996. Defense Enrollment Eligibility Reporting System (DEERS) records show the former service member married his second spouse on 14 February 1999 and she died on 17 June 1999. He married his current spouse on 16 November 2002. A copy of the AFBCMR marital status affidavits were forwarded to the applicant and former service member on 2 July 2014, to verify if either party has remarried (Exhibit B). The applicant responded with a signed and notarized affidavit, dated 8 July 2014, which indicates that she has not remarried (Exhibit C). The service member responded with a signed and notarized affidavit, dated 29 July 2014, which indicates he is currently married effective 16 November 2002 and his current spouse did not complete a Release of Benefits (Exhibit C). AIR FORCE EVALUATION: AFPC/DPFFF makes no recommendation. DPFFF states there is no evidence the applicant or service member submitted a valid former spouse election during the required time following their divorce. The former member also did not notify the Defense Finance and Accounting Service - Cleveland Center (DFAS-CL) of the change in his current marital status or request that spouse coverage be established on her behalf. Premiums for SBP spouse coverage was suspended effective the date of their divorce. The applicant’s current spouse became the eligible spouse beneficiary by operation of the law on the first anniversary of their marriage. A complete copy of the AFPC/DPFFF evaluation is at Exhibit D. APPLICANT’S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and former service member on 10 October 2014 for review and comment within 30 days (Exhibit E). As of this date, the applicant has not responded. The former service member states that on 5 November 1996, he notified DFAS of his divorce to his former spouse and the terms of the divorce regarding SBP. In regards to his current spouse - he believes he mailed copies of the marriage certificate to both the VA and DFAS. He did not request SBP benefits for his current spouse because he did not know that she was eligible. He was unaware that his former spouse neglected to complete her deemed election form in the required time frame. The applicant’s complete response is at Exhibit F. AIR FORCE EVALUATION: AFPC/DPFFF makes no recommendation. DPFFF was asked to relook the case in light of additional documentation the applicant provided. On 4 November 1996, the applicant sent a fax to DFAS-CL, and attached the first page of his divorce decree, requesting his SBP be changed from spouse to former spouse coverage. On 5 November 1996 he sent a letter to DFAS notifying them of his divorce and his former spouse’s eligibility to receive 50 percent of his retired pay and SBP. He also requested that DFAS establish an account in his former spouse’s name to receive benefits and to mail the documents for her to establish an account. Upon receipt of the divorce decree, DFAS suspended the spouse’s coverage, effective the date of divorce. Unfortunately, his request to change from spouse to former spouse coverage was invalid because he failed to complete a DD Form 2656-1, SBP Election Statement for Former Spouse Coverage, and he failed to provide a copy of the Property Settlement Agreement, incorporated in the divorce decree, that awarded his former spouse SBP coverage. There is no evidence his former spouse submitted a request to the Defense Finance and Accounting Service (DFAS) for former spouse coverage to be deemed on her behalf within the first year following divorce. The applicant claims he mailed a copy of his marriage certificate to both the Veterans Administration and DFAS; however, DFAS records do not reflect the current spouse’s name as the spouse beneficiary, and SBP premiums were not reinstated. It is not the VA’s responsibility to notify DFAS of marital status changes that could affect SBP eligibility. The member is ultimately responsible for notifying DFAS of any marital status changes, and when the status of an SBP beneficiary changes. His current spouse became the eligible spouse beneficiary by operation of the law on the first anniversary of their marriage. A complete copy of the AFPC/DPFFF evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and former service member on 27 February 2015 for review and comment within 30 days (Exhibit H). As of this date, no response has been received by this office. 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 an injustice. While we acknowledge the applicant’s assertion that an addendum to a stipulation of judgment for divorce ordered that SBP benefits be paid to her as the former spouse, she failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. However, in this case, the applicant has indicated that there is a potential competing interest for SBP benefits as her former spouse remarried. The AFBCMR has consistently refused to grant similar applications where there is a spouse with a legal entitlement to this benefit, unless that spouse relinquishes his/her right to this entitlement in a notarized statement. Therefore, absent the consent of the former member’s spouse, we do not find there are extraordinary circumstances here that would cause us to render a determination that would serve to extinguish the legal rights of another party in contravention of our long-standing practice in similar cases. Therefore, because such an action would deprive the former member’s spouse of a legal entitlement, granting the application is not appropriate in these circumstances. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or an 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-2014-02658 in Executive Session on 23 July 2015, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02658 was considered: Exhibit A. DD Form 149, dated 27 June 2014, w/atchs. Exhibit B. Letters, SAF/MRBR, dated 2 July 2014. Exhibit C. Affidavits, Applicant, dated 8 July 2014 and Service Member, dated 29 July 2014. Exhibit D. Letter, AFPC/DPFFF, dated 19 August 2014. Exhibit E. Letter, SAF/MRBR, dated 10 October 2014. Exhibit F. Letter, Service Member, dated 1 November 2014, w/atchs. Exhibit G. Letter, AFPC/DPFFF, dated 2 February 2015. Exhibit H. Letter, SAF/MRBR, dated 27 February 2015.