RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-03972
(FORMER COUNSEL: NONE
SERVICE MEMBER)
(APPLICANT) HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
Her former spouses 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 SBP beneficiary.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
On 9 May 14, the Board staff requested the applicant and the
former service member provide documentary evidence of their
current marital status. In response, the applicant provided a
signed notarized affidavit indicating the former service member
is married. The applicant failed to note if she has remarried.
As of this date no response has been received from the former
service member.
The remaining relevant facts pertaining to this application are
described in the letter prepared by the Air Force office of
primary responsibility, which is attached at Exhibit B.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF notes the applicant elected spouse and child SBP
coverage based on full retired pay prior to his 1 Nov 02
retirement. On 3 Feb 10, the parties divorced. In the
Separation and Property Settlement Agreement, which was
incorporated in the divorce decree, the former service member
agreed the applicant would receive the former spouse annuity.
There is no evidence the former service member or the applicant
submitted a valid election for former spouse coverage within one
year following their divorce as required by law. On 9 Feb 10,
the former service member remarried; and on 27 Jun 11, he
submitted a request to resume the existing level of SBP coverage
for his current spouse. The former service members records
were updated and his current spouse is reflected as the eligible
spouse SBP beneficiary and retroactive premiums were deducted
from the former service members retired pay. DPFFF indicates
that based on guidance from the AFBCMR, they provide no
recommendation since the request involves two potential
competing beneficiaries.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit B.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 13 Jan 14 for review and comment within 30 days
(Exhibit C). 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 applicants complete submission in judging the
merits of the case; however, based on the evidence presented, we
cannot conclude 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 applicants assertion that
her divorce decree ordered her 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 former service members new spouse
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 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 former members current spouse
notarized consent relinquishing the benefit. Otherwise, the
applicants 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 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-2013-03972 in Executive Session on 29 May 14, under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 20 Aug 13, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 22 Oct 13.
Exhibit C. Letter, SAF/MRBR, dated 13 Jan 14.
Exhibit D. Letters, AFBCMR, dated 12 May 14, w/atchs.
Exhibit E. Affidavit, Applicant, dated 20 May 14.
Panel Chair
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