RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2013-05896

							COUNSEL:  

							HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

Her former husband’s military records be corrected to reflect he made a timely beneficiary election for “former spouse” coverage under the Survivor Benefit Plan (SBP).  

The Defense Finance and Accounting Service (DFAS) be ordered to comply with Title 10 United States Code (U.S.C.) Sections 1448 and 1450 regarding her enrollment into SBP.  


APPLICANT CONTENDS THAT:

DFAS is not complying with 10 U.S.C. § 1448 and § 1450 or with the Air Force Board For Correction of Military Records (AFBCMR) precedent, and incorrectly believes 10 U.S.C. § 1448(b)(2)(A) requires that SBP be awarded at the time of a divorce and not by any subsequent involving order awarding SBP as required by the statue or an amending order as recognized by the AFBCMR.  

A Colorado court awarded her a portion of her former husband’s military retirement pay and SBP.  Although DFAS has processed her request for her share of the retirement pay, her deemed election for SBP has not been processed.  On multiple occasions she has provided DFAS with timely and properly executed court orders regarding her deemed election for SBP; however, she has faced one hurdle after another and has not been award SBP coverage.  

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


STATEMENT OF FACTS:

Military personnel records reflect the former member retired on 31 December 2010 in the grade of Lieutenant Colonel (O5).  

According to AFPC/DPFFF, the applicant and former member were married on 8 September 1985 and the parties divorced on 8 March 2007.  
Copies of the AFBCMR marital status affidavits were forwarded to the applicant and former member, on 27 February 2015, to verify if either has remarried since their divorce (Exhibit F).  

The applicant responded with a signed and notarized affidavit, dated 18 March 2015, which indicates that she has not remarried.  

The former member responded with a signed and notarized affidavit, dated 27 March 2015, which indicates that he is currently married and his current spouse has not completed a Release of Benefits.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  


AIR FORCE EVALUATION:

AFPC/DPFFF indicates that based upon AFBCMR guidance, dated 18 March 2004, they are forwarding this request without a recommendation because it involves two potential SBP beneficiaries.  In this case, the applicant and former member’s divorce decree, effective 8 March 2007 did not specifically address the SBP coverage.  Also, there is no evidence DFAS received a request from the applicant deeming a SBP election during the first year following the divorce.  On 8 December 2010, the member was briefed on SBP and he was not married prior to his retirement on 1 January 2011.  On 16 June 2011, a court order “Denying Husband’s Motion to Terminate Maintenance and Award Wife Her Share of the Military Retirement and SBP” was issued.  On 13 April 2012, the applicant’s DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request For Deemed Election, was forwarded to DFAS.  On 19 April 2012, DFAS notified the applicant that her deemed election request could not be honored and a modified court order should be obtained.  On 10 July 2012, the member married his current spouse.  On 24 August 2012, an “Amended Order Regarding Survivor Benefit Plan and Maintenance” was issued awarding the applicant the maximum coverage under SBP.  Subsequently, on 14 September 2012, a second DD Form 2656-10 was forwarded to DFAS; however, DFAS did not honor the applicant’s request because the 16 June 2011 court order was dated after the member’s retirement date.  On 14 May 2013, DFAS received the member’s DD Form 2656-6, Survivor Benefit Plan Election Change Certificate, to establish SBP coverage for his current spouse.  DFAS complied with the member’s request and updated his records to reflect his current spouse as the eligible beneficiary.  

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



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant emphasizes the former members refusal to cooperate with the court order requiring him to elect SBP coverage and requested a copy of the guidance issued by the AFBCMR.  She argues that she submitted a timely deemed application for SBP when the first order concerning SBP was entered.  As contended in her application, the effective date of the election for a person who is required to make an election “by reason of a court order,” 10 U.S.C. § 1448(b)(3)(E)(ii) provides the date is “…the first month which begins after the date of that court order or filing”.  In addition, 10 U.S.C. § 1450 does not limit eligibility to within one year of the divorce.  Nevertheless, DFAS incorrectly required the applicant to obtain an amended order.  Also, the DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement For Former Spouse Coverage, dated 4 April 2013 and 12 April 2013, does not appear to be recognized.  The member elected SBP coverage for his former spouse a month prior to establishing SBP coverage for his current spouse.  As such, the actions he took in electing his current wife violated the court’s order.  Unfortunately, the member lives in Thailand and has not provided his current address.  He is aware that in order for the Colorado Court to hold him in contempt and enforce its order, he must be personally served.  The applicant argues her financial future will be jeopardized without SBP.  

The applicant’s complete response, with attachments, 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 timely filed.

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, based on the legal guidance the Board has been given, we are not able 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 the former member to continue coverage for her under SBP, he failed to convert the coverage to former spouse coverage.  Consequently, the former member’s current spouse gained entitlement to the benefit as an operation of law.  The applicant’s only recourse is to return to a court of law to have the issue decided or if the current spouse provides a notarized consent relinquishing the SBP benefit.  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-2013-05896 in Executive Session on 6 May 2015 under the provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 December 2013, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 13 March 2014.
	Exhibit D.  Letter, SAF/MRBR, dated 22 September 2014.
	Exhibit E.  Letter, Applicant, dated 14 October 2014,  
                 w/atchs.
	Exhibit F.  Letter, AFBCMR, dated 25 February 2015, 
                 w/atchs.
	Exhibit G.  Marital Status Affidavit, Applicant, dated
  18 March 2015.  
Exhibit H.  Marital Status Affidavit, Former Member, dated     
            27 March 2015, w/atchs.