RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03767 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: She be entitled to former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She called to check to see if the former military member had followed the divorce decree to provide SBP coverage as he agreed and was his responsibility. She has not remarried. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 16 Jun 84, according to the marriage certificate, the applicant and the former military member were married. On 1 May 88, the former military member retired from the Regular Air Force. On 14 Nov 00, according to the divorce decree, the parties divorced. On 21 Sep 14, copies of the SBP affidavits were forwarded to the applicant and former military member for review, comment, and action within 30 days (Exhibits D and E). On 2 Oct 14, a copy of the applicant’s affidavit, signed and notarized was received with copies of the marriage certificate, divorce decree and the DD Form 2656, Survivor Benefit Plan Election Statement for Former Spouse Coverage, dated and signed by the applicant and witness; however, unsigned by the former military member (Exhibit F). 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. If the latter case, the former spouse must provide legal documentation showing 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. Even though a member fails to notify the Defense Finance and Accounting Service— Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the member’s death. AIR FORCE EVALUATION: AFPC/DPFFF did not provide a recommendation based on guidance issued by the Board when it involves two potential SBP beneficiaries. DPFFF notes that incorporated in the divorce decree and reflected in the Stipulated Equitable Distribution Order, the former military member agreed to “place the applicant as the sole primary beneficiary of the SBP.” There is no evidence either party submitted a valid former spouse election within the first year following their divorce as the law requires. Defense Enrollment Eligibility Reporting System (DEERS) records show the former military member was subsequently married on 6 Aug 01, but he did not notify DFAS-CL of the change in his marital status or request that spouse coverage be established on his new wife's behalf. Nevertheless, his new wife became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage. However, DFAS-CL records continue to erroneously reflect the applicant's name and date of birth (27 Sep 48) as the eligible spouse beneficiary and premiums continue to be deducted from the former military member's retired pay. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation were forwarded to the applicant and the former military member on 18 Dec 14 for review and comment within 30 days (Exhibit G and H). As of this date, no response has been received by this office from the former military member. On 21 Jan 15, we received a handwritten letter from the applicant, indicating that she has complied with the Board’s request. Further, the former military member was not married to his new spouse while he was in the military and as a part of the Equitable Distribution Order he was supposed to have this straightened out. She will take him back to court if this cannot be resolved. His new spouse has not sacrificed anything with him and the SBP is rightfully hers. In support of her response, the applicant provides copies of a previous letter from the former military member and documents previously submitted to the Board. The applicant’s complete response, with attachments, is at Exhibit I. 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, to include her rebuttal, in judging the merits of the case; however, the applicant has not demonstrated that extraordinary circumstances exist for this Board to grant relief in cases of competing interest. We note the Air Force office of primary responsibility has made no recommendation because this case involves two potential SBP beneficiaries. 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 current spouse were to complete and notarize a Survivor Benefit Program – Release of Benefits affidavit relinquishing her right to the Survivor Benefit Program, 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 AFBCMR Docket Number BC-2014-03767 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03767 was considered: Exhibit A. DD Form 149, dated 10 Sep 15, w/atchs. Exhibit B. Applicant's Spouse Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 2 Dec 14. Exhibit D. Letter, SAF/MRBR, dated 21 Sep 14. Exhibit E. Letter, SAF/MRBR, dated 21 Sep 14. Exhibit F. Letter, Applicant Rebuttal, received 2 Oct 14. Exhibit G. Letter, SAF/MRBR, dated 18 Dec 14. Exhibit H. Letter, SAF/MRBR, dated 18 Dec 14. Exhibit I. Letter, Applicant Rebuttal, received 21 Jan 15. 1