RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02192 COUNSEL: NONE 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: The current spouse of the decedent is receiving the SBP benefit instead of her as directed by the divorce decree. In support of her request, the applicant provides a copy of the SBP election, a copy of the member’s death certificate, a copy of the divorce decree and a letter from the member to the Defense Finance and Accounting Service (DFAS). The applicant's complete submission, with attachments, is at Exhibit A. ___________________________________________________________ __ STATEMENT OF FACTS: The service member retired on 1 August 1972. The service member elected spouse only coverage under the SBP at full retirement pay. The applicant and the service member divorced on 14 October 1992. In the Agreement Incident to Divorce, which was incorporated into the divorce decree, the service member agreed to irrevocably designate the applicant as the SBP beneficiary. The service member died on 26 April 2011. His widow is receiving the SBP annuity. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ___________________________________________________________ __ AIR FORCE EVALUATION: AFPC/DPSIAR does not provide a recommendation per AFBCMR guidance because it involves two potential SBP beneficiaries. They do note that Defense Enrollment Eligibility Reporting System (DEERS) records show the member’s spouse at the time of his death is currently receiving the SBP monthly annuity as she became the eligible beneficiary on the first anniversary of their marriage. The complete DPSIAR evaluation is at Exhibit C. ___________________________________________________________ __ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 15 June 2011 for review and comment within 30 days. As of this date, this office has received no response (Exhibit D). ___________________________________________________________ __ ADDITIONAL AIR FORCE EVALUATION: SAF/MRB Legal Advisor recommends denial. The Legal Advisor states if there were not a competing eligible beneficiary, he would recommend correcting the record, but there is. He would also recommend correcting the record if the current spouse gives notarized consent. Absent that consent, there are no extraordinary circumstances supporting a correction of record that would deprive the member’s current spouse benefits to which she is legally entitled. The complete SAF/MRB Legal Advisor’s evaluation, with attachments, is at Exhibit E. ___________________________________________________________ __ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: The applicant maintains she is the rightful beneficiary of her ex-husband’s SBP. She was his wife at the time of his SBP election and was designated on the forms. Additionally, he was directed by the court to provide her this entitlement. Asking her to take legal recourse against the current spouse or asking her for consent on this matter is not practical. The applicant’s complete response, with attachment, is at Exhibit F. ___________________________________________________________ __ 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. We took notice of the applicant’s complete submission in judging the merits of the case, to include her rebuttal response; however, we accept the determination of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion the applicant has not demonstrated that extraordinary circumstances exist that are required for this Board to grant relief in cases of competing SBP beneficiaries. While we do not take issue with the applicant’s assertion that her divorce decree ordered her deceased former husband to continue coverage for her under SBP, he failed to convert the coverage to former spouse coverage within one year of their divorce as required by law. Regrettably, the applicant also failed to execute a deemed election for coverage within the one year timeframe. Consequently, the deceased member’s widow gained entitlement to the benefit as an operation of law. Since the applicant has failed to demonstrate that extraordinary circumstances existed that would override the failure to effect the former spouse coverage, based on the legal guidance the Board has been given, we can only grant the relief sought if the deceased member’s widow provides notarized consent relinquishing the benefit. Otherwise, the applicant’s only recourse is to return to a court of law to have the issue decided. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. ___________________________________________________________ __ 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-2011-02192 in Executive Session on 12 October 2011, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Jun 11, w/atchs. Exhibit B. Master Personnel Record. Exhibit C. Letter, AFPC/DPSIAR, dated 20 Jul 11. Exhibit D. Letter, SAF/MRBR, dated 15 Jun 11. Exhibit E. Letter, SAF/MRBC, dated 7 Sep 11 w/ atchs. Exhibit F. Applicant’s Response, dated 19 Sep 11 w/atch. Panel Chair