RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04275 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His record be corrected to change his Survivor Benefit Plan (SBP) coverage from spouse to former spouse. APPLICANT CONTENDS THAT: The SBP coverage should be changed from spouse to former spouse in order to comply with his Judgment of Absolute Divorce and Consent Order. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 27 Feb 77. On 28 Jan 78, according to the Defense Enrollment Eligibility Reporting System (DEERS), the applicant and former spouse were married. On 1 Sep 02, the applicant retired from the Regular Air Force. On 9 Jul 07, according to the divorce decree, the applicant and former spouse divorced and the applicant was ordered to pay for SBP, listing the former spouse as the annuity recipient. On 17 Aug 14, according to the new marriage certificate, the applicant remarried. On 27 Nov 14, a copy of the SBP affidavits was forwarded to the applicant and former spouse for review, comment and action within 30 days (Exhibits D and E). On 22 Dec 14 and 29 Dec 14 respectively, signed and notarized copies of the applicant’s and former spouse’s affidavits were received (Exhibits F and G). 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 recommends relief be granted, indicating there is evidence of an error or injustice. DPFFF notes the Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and the former spouse were married on 28 Jan 78 and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Sep 02 retirement. The applicant’s youngest child lost eligibility 1 Jul 06 due to age. The parties divorced on 9 Jul 07, and in the Judgment of Absolute Divorce and Consent Order, the applicant was ordered to continue to pay the monthly SBP and to list his former spouse as the annuity recipient. There is no evidence either party submitted a valid former spouse election within the one-year period following their divorce as the law requires. The applicant remarried on 17 Aug 14; however, the new spouse will not be eligible to become a potential SBP beneficiary until the first anniversary of their marriage. DFAS-CL records continue to reflect spouse premiums being deducted from the applicant's retired pay and his former spouse's name and date of birth (22 Jul 52) is erroneously reflected as the eligible spouse beneficiary. 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 27 Feb 15 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 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 for this Board to grant relief in cases of competing interest. We note the Air Force office of primary responsibility recommends approval. However, said recommendation was rendered prior to the applicant’s new spouse from gaining entitlement to the SPB benefits. Now that the applicant and his current spouse have been married for more than a year, the applicant’s new spouse is legally entitled to the SBP benefits in her own right and, because of this, we recognize 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’s request. However, the Board would like to point out that if the applicant’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 his request. 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-2014-04275 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04275 was considered: Exhibit A. DD Form 149, dated 14 Oct 14, w/atchs. Exhibit B. Applicant's Excerpt from Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 23 Jan 15. Exhibit D. Letter, SAF/MRBR, dated 27 Nov 14. Exhibit E. Letter, SAF/MRBR, dated 27 Nov 14. Exhibit F. Affidavit, Applicant, dated 15 Dec 14. Exhibit G. Affidavit, Former Spouse, dated 20 Dec 14. Exhibit H. Letter, SAF/MRBR, dated 27 Feb 15.