RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02857 COUNSEL: HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: She be authorized to deem her former spouse SBP election and apply for the annuity awarded by her divorce decree. _________________________________________________________________ APPLICANT CONTENDS THAT: They were not aware of the law which required them to make a deemed election. The deceased member did not notify Defense Finance and Accounting Service (DFAS) of their divorce as evidenced by the fact she remained the beneficiary for unpaid compensation and SBP. Obviously, if they were aware that a deemed election was required; this would have been completed on 8 June 1995. In support of her request, the applicant submits copies of her DD Form 2656-10/7, Survivor Benefit (SBP)/Reserve Component (RC) SBP Request for Deemed Election; her SF Form 1199A, Direct Deposit Sign-Up Form; her W-4P, Withholding Certificate for Pension or Annuity Payments; her divorce decree and Certificate of Death. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The deceased member and the applicant were married on 5 April 1980 and he elected child SBP coverage based on full-retired pay prior to his retirement on 1 October 1993. The parties divorced on 7 June 1995. Neither party submitted a valid election change during the required time limit following their divorce. The deceased member married on 24 June 2000, but did not request DFAS establish SBP coverage on his new wife’s behalf. The youngest child lost eligibility in July 2007. The deceased member’s pay record continued to reflect the applicant’s date of birth as the eligible beneficiary and SBP premiums continued to be deducted from his retired pay until his 12 July 2010 death. The current spouse has not submitted a request for SBP annuity. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR states it is forwarding this request without a recommendation because it involves two potential SBP beneficiaries. The complete AFPC/DPSIAR evaluation is at Exhibit B. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The SAF/MRB Legal Advisor recommends denial. The Legal Advisor states that despite the court order, federal law makes the election unavailable when the deemed election is not timely effected. If there were not a competing eligible beneficiary, or there was notarized consent of the current spouse, he would recommend correcting the record, but there is a competing spouse and no consent. He sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in this manner will deprive the current spouse of benefits to which she is legally entitled. The complete SAF/MRB Legal Advisor’s evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states that paragraph 13; page 20 of the divorce decree shows the deceased member acknowledged his obligation by submitting this as an election for SBP for his spouse. As proof the Air Force received this document, it shows a series of monthly payments credited to her account through direct deposit. The DFAS shows where the check came from which proves that the former spouse was receiving retirement benefits as outlined in the divorce decree. The fact that DFAS honored that obligation shows that they had received the document, which also dealt with SBP. The applicant’s counsel complete response, with attachments, is at 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. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the SAF/MRB Legal Advisor and adopt the rationale expressed, as the basis for our conclusion the applicant has not sustained her burden of having suffered either an error or an injustice. While counsel argues the Judgment Entry Decree for Divorce forwarded to DFAS authorized the former spouse retired pay, he also believes this same instrument should constitute a deemed election for SBP. Although we note counsel’s contentions, we do not believe the Judgment Entry Decree for Divorce constitutes a valid election. Additionally, only in the most unique of circumstances would the Board make a ruling on a case that involves two claimants to a benefit that only one of them can receive. However, if the legal beneficiary submits a notarized statement relinquishing her entitlement to the SBP, the Board may be willing to reconsider the applicant’s appeal in consideration of this evidence. In view of the foregoing, 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; that 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 AFBCMR Docket Number BC-2010-02857 in Executive Session on 5 January 2011, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-02857 was considered: Exhibit A. DD Form 149, dated 26 Jul 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 30 Aug 10. Exhibit C. Letter, SAF/MRB Legal Advisor, dated 29 Oct 10. Exhibit D. Letter, AFBCMR, dated 15 Nov 10, w/atchs. Exhibit E. Applicant's Response, dated 7 Dec 10, w/atchs. Panel Chair