RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-03013

      (DECEASED) 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:

Their divorce decree directed her former  spouse  to  maintain  her  as  the
beneficiary under the SBP.  She believes the court  order  was  violated  by
designating the current spouse as the SBP beneficiary.

In support of her request, she  provides  copies  of  the  deceased  service
member’s death certificate, their divorce decree and a copy of  the  service
member’s retirement order.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The service member retired on 1 Apr 74, after  serving  22  years,  9 months
and 16 days of active service.

The service member, prior  to  his  retirement,  elected  spouse  and  child
coverage under the SBP based  on  a  reduced  level  of  retired  pay.   The
applicant and the service member divorced on 3 Jun 94 and the divorce  order
directed the applicant be maintained as the SBP beneficiary.   There  is  no
evidence the service member or the applicant submitted a request for  former
spouse coverage within  one  year  following  their  divorce.   The  service
member remarried on 16 Jul 94 and the current  spouse  became  the  eligible
spouse beneficiary on the first anniversary of their marriage.  The  service
member died on 9 Apr 10.  His widow has filed for and 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 B.

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AIR FORCE EVALUATION:

AFPC/DPSIAR states since the request involves  two  potential  beneficiaries
and based on the guidance by the AFBCMR did not provide a recommendation.

The complete AFPC/DPSIAR evaluation is at Exhibit C.

SAF/MRB Legal Advisor recommends denial of  the  applicant’s  request.   The
Legal Advisor notes the applicant cannot  be  the  SBP  beneficiary  because
there was not a proper election submitted  within  one  year  following  the
divorce as required by law.

The complete SAF/MRB Legal  Advisor  evaluation,  with  attachments,  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant requests the Board honor the divorce decree  that  deemed  her
the beneficiary under the SBP.

The applicant states  she  complied  with  the  rules.  In  order  to  start
receiving payment she was requested to send several copies  of  the  divorce
decree to the finance center.

The applicant further states she was married to the service  member  for  42
years all through his Air Force and  Ingersoll-Rand  Company  careers.   His
current spouse received his Air Force life insurance.  The applicant  really
believed all she had to do was to submit her divorce decree to  receive  the
payments.  This is not justice.

The applicant’s complete responses are at Exhibit D.

_________________________________________________________________

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 the  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  of  she  and  her
deceased former husband 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-2010-
03013 in Executive Session on 16 Dec 10 and 5 Jan 11, under  the  provisions
of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2010-03013 was considered:

      Exhibit A. DD Form 149, dated 16 Aug 10, w/atchs.
      Exhibit B. Letter, AFPC/DPSIAR, dated 23 Sep 10.
      Exhibit C. Letter, SAF/MRBR, dated 5 Nov 10.
      Exhibit D. Letter, SAF/MRB Legal Advisor, dated 23 Nov 10.
      Exhibit E. Letter, Applicant, dated 24 Nov 10, w/atchs.
      Exhibit F. Letter, Applicant, undated.
      Exhibit G. Letter, AFBCMR, dated 30 Nov 10, w/atchs.
      Exhibit H. Letter, Applicant, undated.





                             Panel Chair