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AF | BCMR | CY2014 | BC 2014 01662
Original file (BC 2014 01662.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-01662

	  	COUNSEL:  NONE
	 	
		HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

She be allowed to make a former spouse election under the 
Survivor Benefit Plan (SBP).


APPLICANT CONTENDS THAT:

The SBP reads spouse; however, it should read former spouse in 
accordance with their divorce.  

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


STATEMENT OF FACTS:

The former member retired from the Air Force on 1 March 2001.

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force which is at Exhibit B.


AIR FORCE EVALUATION:

AFPC/DPFFF does not provide a recommendation as the application 
involves two potential SBP beneficiaries.  

The applicant was married to the former service member on 
8 September 1980.  Prior to his 1 March 2001 retirement, the 
former member elected spouse and child SBP coverage based on 
full retired pay.  The parties divorced on 21 February 2008 and 
in the separation agreement, which was incorporated into the 
divorce decree, the former member agreed to maintain SBP for the 
applicant.  However, there is no evidence either party submitted 
a valid former spouse election within the first year following 
the divorce, as the law requires.

The Defense Enrollment Eligibility Reporting System (DEERS) 
reflects the former member remarried on 30 April 2009, but he 
did not notify the finance center of the change in his marital 
status or request that spousal coverage be established on her 
behalf.  By operation of law, the current spouse became the 
eligible spouse beneficiary on the first anniversary of their 
marriage.

The complete DPFF evaluation is at Exhibit B.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant has no additional evidence to submit but states 
that it was the intent of all parties that she and the children 
remain beneficiaries of the SBP.  She has paid half of the 
premiums and was unaware there was a form that she needed to 
complete.  

The applicant submitted an affidavit attesting to the fact that 
she and her former spouse were marred on 9 September 1980.  They 
divorced on 21 February 2008.  She did not indicate whether or 
not she was remarried; however, she did attest that her former 
spouse is remarried. 

The applicant’s complete response, with attachment, is at 
Exhibit D.

On 26 April 2014, SAF/MRBR sent the former member a request to 
return a notarized SBP marital status affidavit and SBP release 
of benefits affidavit within 30 days (Exhibit E).  As of this 
date, the former member has not responded.


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.  The 
applicant has not demonstrated that extraordinary circumstances 
exist as required for this Board to grant relief in cases of 
competing SBP beneficiaries.  We took notice of the applicant’s 
complete submission in judging the merits of the case.  While we 
note the divorce decree awarded the applicant continued coverage 
under SBP, neither she nor the former member made a deemed 
election within one year as required by law.  Since it appears 
the former service member’s second spouse gained entitlement to 
the benefit by operation of law, and there has been no showing 
of extraordinary circumstances, we are precluded from granting 
the applicant the SBP benefit.  Absent the current spouse 
relinquishing her entitlement or the former member executing the 
appropriate steps required to remove his current spouse as SBP 
beneficiary, we find no basis to grant the applicant’s request. 


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.


The following members of the Board considered AFBCMR Docket 
Number BC-2014-01662 in Executive Session on 12 June 2015, under 
the provisions of AFI 36-2603:


The following documentary evidence was considered:

Exhibit A. DD Form 149, dated 14 Apr 14, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 11 Jun 14.
Exhibit C. Letter, SAF/MRBR, dated 30 Sep 14.
Exhibit D. Letter, Applicant’s Response, undated, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 26 Apr 14, w/atch.




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