RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02150 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s record be changed to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: She was awarded the SBP in her divorce decree. In support of the applicant’s appeal, she provides a personal statement, a copy of a death certificate and divorce decree. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant and the decedent were married on 2 July 1965 and he elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 May 1990 retirement. They divorced on 27 May 1992. The decedent married his second spouse on 5 December 1992. On 18 February 1997, the decedent requested that the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) remove the applicant and add his second spouse to the plan. The decedent died on 17 August 2009. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR makes no recommendation. DPSIAR states the applicant’s divorce decree ordered the former service member to maintain the SBP connected to his military retired pay for the benefit of the applicant. However, neither party submitted a valid election within one year of their divorce. The former service member’s widow is currently receiving a monthly SBP annuity of $332. The DPSIAR complete evaluation is at Exhibit B. The applicant was provided an advisory (Exhibit C) prepared by SAF/GCM on similar cases considered by the Board. The Board has been advised that it can consider cases involving potential claims by more than one spouse or former spouse if there is evidence that the member or former spouse timely notified the Government within one year after the divorce was final, or if there are extraordinary circumstances that would justify correction of the record. For example, extraordinary circumstances might exist if the current spouse signs a notarized affidavit saying she waives her potential claim to the survivor benefits in favor of complying with the member’s obligations under the divorce agreement. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 18 May 2012, copies of the Air Force evaluations were forwarded to the applicant for review and response 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 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 an error or injustice. The applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. We took notice of the applicant’s complete submission in judging the merits of the case. We do not take issue with the applicant’s assertion that the Court, in the divorce decree, ordered the late former service member to continue coverage for her under SBP. In violation of the Court’s order, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. The applicant indicated she was never informed that she had to follow-up on this matter after their divorce. It was not until her former husband’s death that she was informed by personnel at Offutt Air Force Base that the payment allocation change had been made from her to her former spouse’s widow. In the absence of evidence that there was a “deemed election” by the former service member within one year after the divorce, the Board assumes the former service member’s widow gained entitlement to the benefit by operation of law. Since the applicant has failed to demonstrate that extraordinary circumstances exist that would justify correction of the record by this Board, 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 an 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-2011-02150 in Executive Session on 15 August 2012, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02150 was considered: Exhibit A. DD Form 149, dated 4 June 2011, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 20 July 2011. Exhibit C. Letter, SAF/GCM, dated 18 October 2006. Exhibit D. Letter, SAF/MRBR, dated 18 May 2012.