RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02108 (FMR SVC MBR) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: She was told she did not file the divorce decree with the proper office. In support of her request, the applicant provides a copy of the former service member’s DD Form 214 and death certificate, their marriage certificate, and a copy of their divorce decree. The applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and former service member were married on 21 Apr 58. The service member elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Jul 78 retirement. Their youngest child lost eligibility to the SBP due to age in Jun 82. The applicant and service member divorced on 17 Nov 89, and the divorce order directed the service member pay the monthly SBP premiums for the applicant. The service member remarried on 9 Jun 93, but failed to request SBP spouse coverage on her behalf, but his spouse became the eligible beneficiary a year after their marriage by an operation of law. The service member died on 3 May 11. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force and the SAF/MRB Legal Advisor, which are attached at Exhibits B and C. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR states that since the request involves two potential beneficiaries, and based on the guidance by the AFBCMR, it did not provide a recommendation. The complete AFPC/DPSIAR evaluation is at Exhibit B. SAF/MRB Legal Advisor indicates there are no extraordinary facts or equities which merit granting the relief sought, unless the widow relinquishes her right to the annuity. While a court is well suited to resolve disputes between competing parties, the AFBCMR is not. The applicant provides some allegation, but little evidence of an error on behalf of the Air Force or DFAS. The only claim of injustice appears to be the applicant was unaware of the SBP election requirements. Though the widow has yet to apply for SBP, neither of the applicant’s allegations merit taking the entitlement from the widow and granting it to the former spouse without the benefit of a judicial hearing. The complete SAF/MRB Legal Advisor evaluation, with attachments, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force and SAF/MRB Legal Advisor evaluations, along with copies of two redacted legal opinions pertaining to the issue of competing spouse beneficiaries, were forwarded to the applicant and the deceased former service member’s widow on 3 Jan 12 for review and comment within 30 days (Exhibit D). In response, the applicant indicates that she sent information to DFAS twice. She was not aware that she needed to send the divorce decree to a different office. She was depending on the SBP to supply her income. The applicant’s complete response 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 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. This Board has been previously advised it should not consider cases, such as the applicant’s, involving disputed claims unless a court of competent jurisdiction has ruled in the case or pushes the AFBCMR to make a determination in the case. The applicant asserts that the divorce decree issued to her and the deceased former member awarded her benefits under SBP. However, she has not provided any evidence that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. As noted in the SAF/MRB Legal Advisor evaluation, federal law makes the election unavailable when the deemed election is not timely effected. Further complicating this case is the fact that after he remarried, the deceased former member failed to elect coverage for his current spouse who is now the eligible SBP beneficiary as a matter of law. Consequently, this is now a case involving a disputed claim. Since there has been no ruling by a court of competent jurisdiction regarding this issue, we do not find that any basis exists for us to decide this case. In our view, 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 must deny the relief sought in this application. _________________________________________________________________ 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-2011-02108 in Executive Session on 9 Feb 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02108 was considered: Exhibit A. DD Form 149, dated 15 Jun 11, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 20 Jul 11. Exhibit C. Letter, SAF/MRB Legal Advisor, dated 7 Nov 11. Exhibit D. Letter, AFBCMR, dated 3 Jan 12, w/atchs. Exhibit E. Letter, Applicant, dated 28 Jan 12. Panel Chair