RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03646 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: Their separation agreement, which was incorporated in the divorce decree, states that she will be the beneficiary of the SBP until her death. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The 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 B. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF provides no recommendation, based on the guidance from the AFBCMR and since there are two potential SBP beneficiaries. A spouse's eligibility to receive an SBP annuity terminates upon divorce. However, there are two mechanisms for changing spouse coverage to former spouse coverage. The former service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf. One of these actions must be exercised within the first year following the divorce. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. If neither party requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. The microfiche records from the Air Force Accounting and Finance Center (AFAFC) reflects the former service member did not elect SBP coverage during the Plan’s initial enrollment period. The former service member elected spouse only SBP coverage based on full retired pay during an authorized open enrollment period (1 Oct 81 to 30 Sep 82). The parties' divorced on 3 Dec 87 and the final decree does not specifically refer to the SBP. There is no record the applicant submitted a valid election to establish former spouse SBP coverage within the first year following their divorce. The former service member died on 14 Jul 12. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the service member remarried on 18 Nov 92. There is no evidence he notified DFAS-CL of the change in his marital status, or request SBP coverage be established on his new spouse’s behalf. However, his current spouse became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. A complete copy of the AFPC/DPFFF 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 1 Oct 12, for review and comment within 30 days. 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. We took notice of the applicant’s complete submission in judging the merits of the case. The applicant has not provided any evidence to reflect she was awarded former spouse coverage by the court. She has not provided evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law. Nor, has she provided evidence to show she requested a deemed election for former spouse coverage within the one-year timeframe. Consequently, the former service member’s current spouse gained entitlement to the benefit as an operation of law. The applicant has not provided any evidence that extraordinary circumstances existed that would override the failure of her and the former spouse to effect the former spouse coverage and, based on the legal guidance the Board has been given, we cannot, except in the most extraordinary circumstances, award a benefit to an applicant when doing so involves taking or depriving another of said benefit. 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 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-2012-03646 in Executive Session on 17 Jun 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Aug 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 12 Sep 12. Exhibit C. Letter, SAF/MRBR, dated 1 Oct 12. Panel Chair