RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02623

			COUNSEL:  NONE

			HEARING DESIRED:  NO

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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).

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APPLICANT CONTENDS THAT:

She was not aware a form was needed for the SBP annuity after 
their divorce.  It was not until she recently researched the 
program that she learned about this additional form.  Upon 
retirement, her former spouse was told that she would never be 
removed as the beneficiary.  Additionally, the divorce decree 
designated her SBP beneficiary. 

In support of her request, the applicant provides a copy of the 
divorce decree and marriage certificate.

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

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STATEMENT OF FACTS:

The service member retired effective 1 February 2008.  Data 
extracted from the Defense Enrollment Eligibility Reporting 
System (DEERS) reflect the applicant and the member divorced on 
26 August 2010.  DEERS also reflects the member remarried on 
12 February 2012.  

The Board has been advised that it should not consider cases 
involving potential disputed claims unless a court of competent 
jurisdiction has ruled in the case or pushes the AFBCMR to make 
a determination in the case.

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.

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AIR FORCE EVALUATION:

DFAS recommends denial.  The member retired from the Air Force 
on 1 February 2008.  At the time of his retirement, he elected 
spousal coverage for the applicant, to whom he was married.  The 
applicant and the member divorced on 26 August 2010.  According 
to the final decree of divorce, the member is court ordered to 
maintain the applicant as a former spouse beneficiary for SBP.  
The member did not inform DFAS that he was divorced and did not 
change his election from spouse to former spouse coverage.  DFAS 
was only notified of the divorce upon receipt of this 
application.  

A spouse loses eligibility as the SBP beneficiary upon divorce.  
There is no provision that makes former spouse coverage an 
automatic benefit.  The only means by which the divorced spouse 
can become an SBP beneficiary is if a former spouse coverage is 
elected by the service member or a deemed election is made on 
the basis of a court order.  A court order by itself cannot be 
used to issue coverage.  Although the divorce decree does award 
the SBP to the applicant, there was never a deemed election by 
her, or her attorney on her behalf within one year of the 
divorce.  According to law, DFAS cannot provide former spouse 
SBP coverage without a deemed election from the former spouse or 
her attorney on her behalf within one year from the date of the 
final divorce or an election change request from the member.  

The premium costs for SBP have continued to be deducted from the 
member’s monthly military retired pay.  Based on this 
application, DFAS was required to change his SBP election to no 
beneficiary and refund the premiums from the first month 
following the divorce.  Should the Board approve this 
application; those premiums will need to be collected from the 
members military retired pay account.

The complete DFAS evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response to a request for a Marital Status Affidavit, the 
applicant submits that she is not currently married and that her 
former spouse is married. (Exhibit E)  The member has not 
responded.

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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 an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, 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 former husband to 
continue coverage for her under SBP, she failed to convert the 
coverage to former spouse coverage within one year of their 
divorce as required by law.  Since the applicant has failed to 
demonstrate that extraordinary circumstances existed that would 
override the failure to effect the former spouse coverage, we 
can only grant the relief sought if the former member’s spouse 
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.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2013-02623 in Executive Session on 7 August 2014, 
under the provisions of AFI 36-2603:


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02623 was considered:

    	Exhibit A.  DD Form 149, dated 25 May 13, w/atchs.
    	Exhibit B.  Member’s Military Personnel Record.
	Exhibit C.  Letter, DFAS, dated 18 Jun 13.
  	Exhibit D.  Letters, SAF/MRBR, dated 5 Aug 13.
	Exhibit E.  Letters, SAF/MRBC, dated 9 May 14.