RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 		DOCKET NUMBER: BC-2014-01362

					COUNSEL:  NONE

			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

His status of his Survivors Benefit Plan (SBP) beneficiary be 
changed from “Spouse” to “Former Spouse.”


APPLICANT CONTENDS THAT:

The information provided during his retirement out-processing 
briefing was inaccurate and misleading.  He was told the only time 
his SBP election could be changed was in the event of divorce, 
marriage or death of the listed beneficiary.  They did not 
indicate that a change was mandatory after one of these events.

Shortly after their divorce in 1992, his ex-wife took a copy of 
their divorce decree to their local base legal office to update 
their retirement pay and SBP.  His ex-wife was informed that 
advice could only be provided to the service member, not an ex-
spouse.  Their divorce decree directed SBP was to remain in force 
(payable to his ex-wife) and since the beneficiary was not 
changing, there did not appear to be any reason to take action.  
If he had known that there was a requirement to file a change in 
status of the beneficiary for SBP within a year of the event 
[divorce], he would have done so.

SBP deductions have been collected every month since his 
retirement; almost 22 of those years were after their divorce.  At 
this point, the only fair and corrective action is to correct his 
record to show that the status of the beneficiary is his “ex-wife” 
instead of “wife.”

In 1988 and 1992 military representatives had an opportunity to 
avoid this situation by providing accurate information, but that 
did not happen.

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





STATEMENT OF FACTS:

In 1988, according to information provided by the applicant, he 
retired from active duty.

On 7 Apr 92, according to information provided by the applicant, 
the divorce decree, issued by the State of Washington, directed 
the wife shall receive 45 percent of the applicant’s Air Force 
retirement and SBP benefits shall remain in effect for so long as 
the applicant is eligible under the retirement plan.

On 8 Apr 14, SAF/MRBR sent the applicant a request to return a 
notarized SBP marital status affidavit and SBP release of benefits 
affidavit within 30 days.  As of this date, the applicant has not 
responded.

On 4 Sep 14, SAF/MRBR sent the applicant a second request for the 
affidavits previously requested on 8 Apr 14; in particular, the 
notification from the current spouse that she is relinquishing the 
benefits to the former spouse.  As of this date, the applicant has 
not responded.

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 does not make a recommendation.  According to Defense 
Enrollment Eligibility Reporting System (DEERS) records, the 
applicant and former spouse were married on 25 Jun 71 and he 
elected spouse and child SBP coverage based on full retired pay 
prior to his 1 May 88 retirement.  The youngest child lost 
eligibility in July 2004 due to age.  The parties divorced on 
1 Jan 92.  There is no evidence either party submitted a valid 
former election within the one-year period following their divorce 
as the law requires.
 
The applicant and his second spouse married on 29 Sep 00, but did 
not notify the Defense Finance and Accounting Service of the 
change in his marital status or request that spouse coverage be 
established on his new wife’s behalf.  The applicant’s retired pay 
records continue to reflect his first spouse’s name and date of 
birth as the eligible spouse beneficiary; however, by operation of 
law, the new wife became the eligible SBP spouse beneficiary on 
the first anniversary of their marriage.

The applicant’s request cannot be fulfilled without the applicant 
obtaining notarized signatures of the requested affidavits, 
particularly, the notification from the current spouse that she is 
relinquishing the benefits to the former spouse.

Based on previous guidance, there is no recommendation because 
this case involves two potential beneficiaries.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant is only asking for the status of is beneficiary to 
his SBP election made in 1988 be changed from “Spouse” to “Former 
Spouse.”  SBP premiums have been collected for more than 26 years, 
including 22 years since his divorce.  Prior to his subsequent 
marriage, his second wife was aware his former spouse was entitled 
to 45 percent of his retirement pay and his SBP in accordance with 
his divorce decree from the state of Washington.  His failure to 
comply with the law regarding SBP in this case is largely the 
result of improper processes and procedures performed by Air Force 
briefers.


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; to include his rebuttal response, however, 
after a thorough review of the available evidence of record, it is 
our opinion the requested relief should be denied.  We understand 
the applicant’s situation; however, the wife from the 29 Sep 00 
marriage became the eligible spouse beneficiary on the first 
anniversary of their marriage by operation of law.  This 
information has been communicated to the applicant and multiple 
requests to obtain the appropriate release of benefit forms have 
gone unanswered by him.  The AFBCMR has long been advised by legal 
counsel that it should only consider granting cases involving more 
than one claimant to the same benefit when extraordinary 
circumstances are present such as clear and unmistakable evidence 
that a deemed election was made or the current spouse provides a 
notarized statement voluntarily relinquishing their right to the 
benefit.  There is no evidence provided that supports that 
extraordinary circumstances exist in this case.  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-2014-01362 in Executive Session on 6 May 15 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 23 May 14.
Exhibit D.  Letter, SAF/MRBR, dated 28 Jul 14.