RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05178 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His records be corrected to reflect that he elected “Former Spouse” coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: His divorce decree declared that his former spouse be the recipient of his SBP. In Feb 04, he believed he signed all the necessary paperwork and forwarded them to his former spouse, who in turn, forwarded the paperwork to the Office of Retired and Annuity Pay in Cleveland, Ohio. In Apr 04, he checked to confirm his retirement pay had been divided and SBP was being taken out of his retirement pay; however, he did not check in detail nor did his former spouse confirm that the SBP change had occurred. Since Mar 04, SBP premiums have been taken from his pay. He discussed this issue with the Office of Retired and Annuity Pay on two occasions in Nov 14 and both times they assured him that the resubmission of the DD Form 2556-1 [sic], Survivor Benefit Plan Election Statement for Former Spouse Coverage, would be honored. It was honored for approximately three weeks, but on 3 Dec 14, the SBP deduction stopped indicating it was submitted more than one year after the effective date of the divorce. He submitted the original paperwork in a timely manner and because he is not disputing the action to add his former spouse to his SBP, he believes his application should be considered timely. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the AFBCMR SBP Marital Status Affidavit notarized on 12 Feb 15, the applicant has sworn/affirmed that on 1 Jan 01, he retired from active duty. He also indicated that on 20 Dec 75, he and his former spouse were married and on 21 Jan 04, they divorced. Lastly, he indicated that on 23 Apr 10, he married his current wife. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit D. AIR FORCE EVALUATION: AFPC/DPFFF makes no recommendation indicating the application involves two potential SBP beneficiaries. 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. 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. Former spouse coverage is suspended if the former spouse remarries before age 55. Costs cease effective the first day of the month after the month of remarriage. However, eligibility and premiums are reinstated effective the first day of the month after the disqualifying marriage terminates. If the member dies while the former spouse is ineligible, entitlement is reinstated in the event the disqualifying marriage subsequently ends. On 20 Dec 75, the applicant and his former spouse were married and he elected spouse only SBP coverage based on full retired pay prior to his 1 Jan 01 retirement. On 21 Jan 04, they divorced and in the divorce decree the member was ordered to continue to pay the SBP premiums on behalf of his former spouse. There is no evidence either party submitted a valid former spouse election during the required time following their divorce. The Defense Enrollment Eligibility Reporting System (DEERS) records show the applicant and his current spouse married on 23 Apr 10, but he did not notify the finance center of the change in his marital status or request that spouse coverage be established on his new wife's behalf. Nevertheless, the applicant’s current spouse became the eligible SBP beneficiary by operation of the law on the first anniversary of their marriage. Premiums for the spouse's portion of the SBP coverage continued to be deducted from the member's retired pay until 3 Dec 14 when DFAS suspended the spouse coverage after receiving a copy of their divorce decree and an invalid DD Form 2656-1. In the remarks of the DD Form 2656-1, the applicant stated that his former spouse remarried; however, he did not provide a copy of her marriage certificate. A complete copy of the AFPC/DPFFF evaluation, with attachment, is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 3 Jun 15 for review and comment within 30 days (Exhibit E). 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’s only recourse is to return to a court of law to have the issue decided. The applicant has not demonstrated that extraordinary circumstances exist as required for this Board to grant relief in cases of competing SBP beneficiaries. While we note the applicant contends that the divorce decree awarded his former spouse continued coverage under SBP, neither he nor his former spouse made a deemed election within one year as required by law. Since it appears the applicant’s current spouse gained entitlement to the benefit by operation of law, and there has been no showing of extraordinary circumstances, we are precluded from granting the former spouse the SBP benefit. Should the applicant provide an affidavit from his current spouse relinquishing the SBP benefit, we would be inclined to reconsider the case based on new evidence. Therefore, in the absence of such an affidavit, we find no basis to grant the applicant’s request. 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-2014-05178 in Executive Session on 18 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Dec 14, w/atchs. Exhibit B. Letter, SAF/MRBR, dated 22 Jan 15. Exhibit C. Letter, Applicant, dated 30 Jan 15, w/atch. Exhibit D. Memorandum, AFPC/DPFFF, dated 13 Mar 15, w/atch. Exhibit E. Letter, SAF/MRBR, dated 3 Jun 15.