RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00927
	 		COUNSEL:  NONE
	 		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her former spouse’s records be corrected to establish former 
spouse coverage under the Survivor Benefit Plan (SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband handled all the money/business matters.  After their 
divorce, she asked her ex-husband to help her get her share of 
his Air Force retirement, but he refused.  

Her lawyer was inexperienced in military divorce.  Her divorce 
decree talks about former spouse beneficiary, but she does not 
remember filling-out any forms or instructions about SBP.

Her husband has threatened to take her off his Air Force 
retirement checks, Medicare, and TRICARE for Life.

In support of her request, the applicant provides a personal 
statement, and copies of her divorce decree and a letter from 
the Defense Finance and Accounting Service (DFAS) agency.

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

________________________________________________________________

STATEMENT OF FACTS:

On 10 Oct 13, the applicant and the former member were provided 
an advisory opinion prepared by SAF/GCM on similar cases 
considered by the Board.  The opinion states that the Board 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.  They 
were given 30 days to review and comment on this opinion 
(Exhibit E & F).  

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force which is at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPFFF makes no recommendation.  DPFFF states that Defense 
Enrollment Eligibility Reporting System (DEERS) records show the 
applicant and her former spouse were married on 5 Nov 62, and he 
elected spouse and child SBP coverage based on full retired pay 
prior to his 1 Jan 83 retirement.  The parties divorced on 8 Dec 
09, and the divorce decree ordered the member to designate the 
applicant as the SBP beneficiary.  There is no evidence either 
party submitted a valid former spouse election during the 
required time following their divorce.  The DEERS records show 
the member married his current spouse on 12 Dec 09, but he did 
not notify the Defense Finance and Accounting Service – 
Cleveland Center (DFAS-CL) of the change in his marital status 
or request spouse coverage be established on her behalf.  
Nevertheless, his current spouse became the eligible SBP 
beneficiary by operation of the law on the first anniversary of 
their marriage.  DFAS-CL records erroneously reflect the 
applicant’s name and date of birth (14 Dec 40) as the eligible 
spouse beneficiary and SBP premiums continue to be deducted from 
the former member’s retired pay.

The complete DPFFF evaluation is at Exhibit B.

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APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION:

The former member states that he was directed by the court, and 
it is in the divorce decree that his former spouse would receive 
the SBP.  His former spouse’s lawyer was directed to complete 
the paperwork; however, it does not appear he ever did.  His pay 
statement reflects his former spouse on the SBP information.  
The divorce decree states that his former spouse would pay one 
half of the cost in the half of the salary she received, which 
she has never done.  She still owes him $2,928.00.

The complete response, with attachment, is at Exhibit G

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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 error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we are not persuaded the applicant has 
sustained her burden of establishing the existence of either an 
error or injustice in the record.  We note, that because neither 
party submitted a valid election within the one-year time 
period, by operation of law his current spouse became the legal 
beneficiary of his SBP.  We are not unsympathetic to her 
dilemma; however, only in the most unique of circumstances would 
the Board make a ruling in a case that involves two claimants to 
a benefit that only one of them can receive.  Since the 
applicant has failed to demonstrate that extraordinary 
circumstances exist that would justify correction of the record, 
we can only grant the relief sought if the applicant provides 
proof of a timely election or the former member’s current spouse 
provides a notarized consent relinquishing her entitlement to 
the benefit.  In view of the foregoing, and in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the relief sought in this application.

________________________________________________________________


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 Docket Number    
BC-2013-00927 in Executive Session on 8 Jan 14, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to Docket Number 
BC-2013-00927 was considered:

    Exhibit A.  DD Forms 149, dated 19 Feb 13, w/atchs.
    Exhibit B.  Letter, AFPC/DPFFF, dated 28 May 13.
    Exhibit C.  Letter, SAF/MRBR, dated 7 Jun 13.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Jun 13.
    Exhibit E.  Letter, AFBCMR, dated 10 Oct 13, w/atch.
    Exhibit F.  Letter, AFBCMR, dated 10 Oct 13, w/atch.
    Exhibit G.  Rebuttal, Member, not dated, w/atch.




				Panel Chair