RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00939 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Corrective action be taken to reflect that a deemed election for former spouse coverage was filed in a timely manner on her behalf under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: The terms of her divorce agreement states that she would be entitled to former spouse coverage under the SBP. She recently learned that her former spouse did not submit the deemed election on her behalf within the required timeframe and she was not aware of the requirement to submit forms to make a deemed election for SBP coverage. In support of her appeal, the applicant provides a personal statement, and background documents related to her request. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s former spouse, a retired Air Force lieutenant colonel, elected spouse only SBP coverage based on a reduced level of retired pay prior to his retirement on 1 July 1998. The parties were divorced on 10 July 2003 and, although unenforceable under the law at that time, the Decree of Divorce ordered the applicant to remain the irrevocable beneficiary for coverage under SBP. The applicant’s former spouse remarried on 15 September 2006, but he did not notify the Defense Finance and Accounting Service (DFAS), of the change in his marital status or request that spouse coverage be established on his new wife’s behalf. Premiums for the spouse’s portion of the SBP coverage continued to be deducted from the member’s retired pay until October 2007, when DFAS retroactively suspended spouse coverage and issued a refund of overpaid premiums. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR has deferred making a recommendation as two potential SBP beneficiaries are involved. The complete AFPC/DPSIAR evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 1 May 2009, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit C). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The SAF/MRB Legal Advisor recommends denial of the applicant’s appeal. The Legal Advisor indicates the Board should not grant the applicant’s request regarding the SBP. Despite the July 2003 court decree discussing SBP coverage, federal law makes the coverage unavailable when the deemed election is not timely effected. The applicant may not have known that she could have made the election but that does not change the legal requirements. If there were not a competing beneficiary, he would recommend granting the applicant’s appeal and correcting the record. However, there is a competing beneficiary in this case. He would also recommend granting the appeal and correcting the record if the member’s surviving spouse gave her notarized consent. Absent that consent, there are no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the former member’s current spouse of benefits to which she is legally entitled. He reminds the Board if it is inclined to grant the remedy, it should not reach a final decision until the view of the current spouse is solicited and considered. The complete SAF/MRB Legal Advisor’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 19 January 2010, for review and comment within 30 days (Exhibit D). Copies of the SAF/GCM Legal Advisory, dated 18 October 2006, and the USAF/JAA Legal Advisory, dated 19 October 2006, which were referenced in the SAF/MRB Legal Advisor’s recommendation of 2 September 2009, were also forwarded to the applicant on 19 January 2010 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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 error or injustice regarding the applicant’s request for SBP coverage. After a thorough review of the evidence of record and applicant’s submission, we are not persuaded the former member’s records should be changed to make the applicant an eligible former spouse SBP beneficiary. Therefore, we agree with the opinion and recommendation of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice, and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. In view of the above, and 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 that the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and that 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 Docket Number BC- 2009-00939 in Executive Session on 4 March 2010, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Mar 09, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 13 Apr 09. Exhibit C. Letter, SAF/MRBR, dated 1 May 09. Exhibit D. Letter, SAF/MRB Legal Advisor, dated 2 Sep 09. Exhibit E. Letter, AFBCMR, dated 19 Jan 10, w/atchs. Vice Chair