RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03441 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: She be designated as the former spouse beneficiary under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: SBP was not mentioned in the divorce decree; however, the decedent voluntarily continued SBP coverage for her after their divorce. They were unaware of the requirement to file a SBP former spouse election form. They were married in May 1976, divorced in May 2005 and neither of them remarried. He intended for her to receive all of his military benefits to include SBP. They were not aware that the divorce decree should have specifically referred to SBP and assumed everything was in order because it stated she would receive 50 percent of his retired pay. The former service member contacted the Defense Finance and Accounting Service (DFAS) to notify them of their divorce. They erroneously believed they had completed the required actions as he continued to pay SBP premiums and she was still listed as the SBP beneficiary. He paid SBP premiums for nine years after their divorce although SBP was not mentioned in the divorce decree. She received a letter from DFAS dated 25 June 2005 advising her that they had received her application for a portion of the retired pay. The letter listed a different service member’s name and stated she could make a “deemed election” for SBP coverage within a year of divorce. They determined they had already followed the DFAS instructions and assumed everything was in order or otherwise would have submitted a new election form. Her former spouse died on 12 May 2014. On 1 July 2014, she received a denial letter of SBP from DFAS. In hindsight, she wished they would have known to change the SBP election. However, his behavior and actions fully support his intention for her to be the SBP beneficiary. His willingness to accept a reduction of $170 a month in his retired pay is indicative of his intention for her to be designated as his SBP beneficiary. DFAS never questioned why he paid “spouse only” SBP for over 9 years. She is not trying to get something that she does not deserve but wants to make sure the decedent’s intentions are honored. In support of her request, the applicant provides a personal statement, a copy of her divorce decree and letters of support from the decedent’s parents and sister. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 June 2001, the decedent retired in the grade of Senior Master Sergeant (SMSgt, E-8). On 12 May 2005, the parties divorced. The final decree of divorce, issued by Bexar County, Texas is silent on SBP. According to a death certificate issued by the State of Texas, the former service member died on 12 May 2014. In a letter dated 1 July 2014, DFAS notified the applicant she was not entitled to SBP as her former spouse did not make a request to change his election to former spouse coverage, nor was a deemed election for former spouse coverage made within one year of the divorce. The applicant provides a signed, notarized affidavit dated 1 October 2014 stating she is not currently married (Exhibit B). On 14 October 2015, the AFBCMR provided the applicant with copies of the SAF/GC opinion dated 18 October 2006 and the Secretary of the Air Force (SECAF) memorandum dated 22 July 2015 describing a recent decision of the SECAF pertaining to a similarly situated application. The applicant provides a signed, notarized affidavit dated 4 December 2015 which states she is the legal heir to the AOP of the decedent’s SBP. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on 13 May 2005, he elected to change SBP spouse to former spouse coverage based on the previous reduced level of retired pay, naming the applicant as the former spouse beneficiary. Approval should be contingent upon recovery of any applicable premiums. As background, a person’s eligibility to receive a spouse SBP annuity terminates upon divorce. However, the law provides two mechanisms for changing spouse coverage to former spouse coverage. One of the following actions must be taken within the first year following divorce: (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf. In the latter case, the former spouse must provide legal documentation the member agreed, or the court ordered the member to establish former spouse coverage. If neither the member nor the former spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. The former spouse is not eligible for annuity payments upon the member’s death even though a member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS)-CL) of the divorce and continues to pay SBP premiums afterwards. The parties were married on 3 May 1976. The decedent elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 June 2001 retirement. The parties divorced on 12 May 2005, and the divorce decree did not address SBP. There is no evidence the decedent submitted a valid election to voluntarily change spouse to former spouse coverage within the first year following their divorce as the law requires. DFAS-CL 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 service member’s retired pay until his death on 12 May 2014. There is no evidence either party remarried, and accordingly, there is no competing claimant. The decedent’s willingness to accept a reduction in his retired pay, even though he had no eligible spouse beneficiary for over 8 years, is indicative of his intent to maintain SBP coverage on the applicant’s behalf. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 23 December 2014 for review and comment within 30 days (Exhibit D). 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 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 that are required for this Board to grant relief in cases of competing SBP beneficiaries. We note the divorce decree is silent on SBP and neither an election by the former member nor a deemed election by the applicant was received within the one-year period of their divorce as required by law. Although the applicant provides a notarized affidavit, dated 4 December 2015 stating she is the beneficiary to the former member’s arrears of pay; 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, if the former member’s heir(s) were to provide a notarized consent relinquishing the benefit, or 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. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-03441 in Executive Session on 6 May 2015, 14 December 2015 and 1 February 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Aug 14, w/atchs. Exhibit B. Affidavit, Applicant, dated 1 Oct 14. Exhibit C. Memorandum, AFPC/DPFFF, dated 15 November 2014, w/atch. Exhibit D. Letter, SAF/MRBR, dated 23 December 2014. Exhibit E. Letter, AFBCMR, dated 14 October 2015. Exhibit F. Letter, AFBCMR, dated 17 November 2015, w/atch. Exhibit G. Affidavit, Applicant, dated 4 December 2015.