RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03982 (FRMR SVC COUNSEL: NONE MEMBER) (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: Their divorce decree ordered her former spouse to retain her as the beneficiary to all insurances polices. 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/DPSIAR 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. If the service member fails to notify the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) of the divorce and continues to pay SBP premiums afterwards, the former spouse is not eligible for annuity payments upon the service member's death. The former service member elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Feb 85 retirement. The parties' divorced on 17 May 88 and the amended 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 transaction history entries from Air Force Accounting and Finance Center (AFAFC) reflect spouse coverage and monthly premiums were suspended and division of the member's retired pay commenced effective Oct 88. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the service member remarried on 13 Jul 94, but he did not notify DFAS-CL of the change in his marital status, or request SBP coverage be established on his new spouse’s behalf. His current spouse became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law. The complete AFPC/DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She was not familiar with the law and regulations of the Air Force, or that she needed to request an election be made on her behalf. She just assumed her former spouse would abide by the court order. She was married to him the entire time he was in the military and believes she should receive the annuity. Her former spouse received a letter from DFAS while they were still married indicating that if he wished to withdraw from SBP he should advise his spouse or former spouse of the effects of his withdrawal. Her daughter recently informed her that her former spouse changed his SBP. She has never signed anything agreeing to a change to the SBP. The applicant’s complete response, with attachment, is at Exhibit C. _________________________________________________________________ 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 any 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 a 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-2012-03982 in Executive Session on 13 Mar 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03982 was considered: Exhibit A. DD Form 149, dated 8 Aug 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 26 Sep 12. Exhibit C. Letter, SAF/MRBR, dated 9 Oct 12. Exhibit D. Letter, Applicant, undated, w/atch. Panel Chair