RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2013-04458
 					COUNSEL:  
					HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

His former spouse be renamed as the designated former spouse 
Survivor’s Benefit Plan (SBP) beneficiary.  


APPLICANT CONTENDS THAT:

His former spouse was to remain as the beneficiary for SBP per 
the Property Settlement Agreement.  He and his former spouse 
were married on 15 Aug 70.  He retired on 1 Dec 89 and they 
divorced on 31 Mar 92.  

He remarried on 4 May 01 and was divorced on 11 Dec 03.  The 
divorce decree does not provide that she be designated as the 
SBP beneficiary.  The parties agreed that the marriage did not 
coincide with his military service and she was not entitled to 
any of his military retired pay.

His former spouse has been receiving a portion of his military 
retirement and remained eligible to be the beneficiary of his 
SBP up until her subsequent marriage.

In 2006 [sic], he notified the Defense Finance and Accounting 
Service (DFAS) of her remarriage before age 55 and requested 
that she be removed as the beneficiary.

On 20 Dec 11, his former spouse divorced.  Although her 
remarriage before age 55 made her ineligible to remain as the 
beneficiary, her subsequent divorce reinstated her eligibility 
as the beneficiary of the SBP.

In Dec 12, the applicant discovered his second wife was listed 
as the beneficiary of his SBP.  On 15 Jan 13, he attempted to 
take action to correct this.  His Retiree Annuity Statement 
(RAS) now indicates his current spouse as the SBP beneficiary.  
This designation is incorrect.  

The premiums were paid for the SBP, the decision to designate 
his former spouse as the SBP beneficiary will have no financial 
impact and serves only to correct the injustice in this case.  
He always intended that his former spouse would be the SBP 
beneficiary.  He made a mistake of law when he contacted DFAS to 
have her removed when she remarried before age 55.

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


STATEMENT OF FACTS:

According to information contained in the Defense Enrollment 
Eligibility Reporting System (DEERS) database, the applicant 
married his first spouse on 15 Apr 70.  He elected spouse and 
child coverage based on full retired pay prior to his 1 Dec 
89 retirement. The Property Settlement Agreement, incorporated 
in the divorce decree provided by the applicant states they were 
married on or about 15 Aug 70. The parties divorced on 31 Mar 
92 and the Property Settlement Agreement, incorporated in the 
divorce decree, stated the applicant would continue to maintain 
the SBP.  

The applicant’s former spouse remarried on 15 May 99 prior to 
her 55th birthday and divorced on 20 Dec 11.  

Per the applicant’s letter dated 17 Jun 99, he requested DFAS-CL 
suspend SBP coverage for his former spouse due to her remarriage 
before age 55.  

On 4 May 01, the applicant married his second spouse and 
divorced on 3 Dec 03.  

According to the Certificate of Marriage provided by the 
applicant, he married his third and current spouse on 7 Dec 04. 


AIR FORCE EVALUATION:

AFPC/DPFFF defers making a recommendation as there are other 
potential SBP beneficiaries.  DPFFF states that former spouse 
coverage is suspended if the former spouse remarries before age 
55.  Costs cease effective the first day of the month after the 
month of remarriage.  However, eligibility and premiums are 
reinstated effective the first day of the month after the 
disqualifying marriage terminates.  

There is no evidence either party submitted a valid former 
spouse election within the one-year period following their 
divorce as the law requires.  The applicant’s former spouse 
remarried prior to her 55th birthday (5 Oct 50) and on 17 Jun 99, 
the applicant requested DFAS-CL suspend SBP coverage due to her 
remarriage.  DFAS-CL suspended the spouse’s portion of the SBP 
coverage retroactive to the date of their divorce.  DFAS-CL 
records erroneously reflect the applicant’s second former spouse 
as the eligible spouse beneficiary.  The applicant remarried on 
19 Dec 04 [sic] but did not notify DFAS-CL of the change in his 
marital status nor requested spouse coverage be established on 
her behalf.  Nevertheless, the third spouse became the eligible 
spouse beneficiary on the first anniversary of their marriage by 
law.  

A complete copy of the DPFFF evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states the date of marriage for the applicant and his 
former spouse is incorrect in the advisory opinion.  The correct 
date of marriage is 15 Aug 70.  The date of his subsequent 
marriage is also incorrect.  The correct date of marriage is 
7 Dec 04.

It is their understanding his current spouse is listed as the 
SBP beneficiary.  She is not a potential SBP beneficiary as she 
was not married to the applicant during any portion of his 
military service.  Neither the applicant nor his current spouse 
dispute the fact that his first former spouse is the rightful 
beneficiary of the SBP.  

The applicant’s complete submission is at Exhibit E.  


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.  Neither the applicant nor the former spouse 
submitted a valid election within the one-year period required 
by law to establish former spouse coverage.  In the absence of 
evidence that there was a "deemed election" by the applicant 
within one year after the divorce, the Board assumes the 
applicant’s current spouse gained entitlement to the benefit by 
operation of law.  Although the AFBMCR has the authority, it 
should not rule on a dispute between claimants to a benefit that 
only one of them can receive.  Furthermore, it is not 
appropriate for the Board to adjudicate such a dispute since 
that task is more properly left to the courts.  However, if the 
applicant’s current spouse submits a notarized statement 
relinquishing her entitlement to the SBP, the Board may be 
willing to reconsider the applicant’s appeal in consideration of 
this evidence.  In view of the foregoing, we find no basis to 
recommend granting the relief sought in this application. 
4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.


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-2013-04458 in Executive Session on 29 Dec 14 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 9 Jan 14, w/atchs.
        Exhibit B.  Applicant’s Master Personnel Record.   
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 14 Apr 14.  
	Exhibit D.  Letter, SAF/MRBR dated 25 Apr 14.  
        Exhibit E.  Letter, Applicant, dated 21 May 14.