RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				 DOCKET NUMBER: BC-2014-02658

  							 COUNSEL:  NONE

  							 HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

Her former spouse’s record be changed to show he elected former 
spouse coverage under the Survivor Benefit Plan (SBP).


APPLICANT CONTENDS THAT:

According to the terms of the court order and divorce decree, 
she was awarded the continuance of the SBP annuity.

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


STATEMENT OF FACTS:

The applicant and the former service member were married on 
9 February 1971 and he elected spouse only SBP coverage based on 
a reduced level of retired pay prior to his 1 May 
1992 retirement.

The applicant and the former service member divorced on 
30 October 1996.

Defense Enrollment Eligibility Reporting System (DEERS) records 
show the former service member married his second spouse on 
14 February 1999 and she died on 17 June 1999.  He married his 
current spouse on 16 November 2002. 

A copy of the AFBCMR marital status affidavits were forwarded to 
the applicant and former service member on 2 July 2014, to 
verify if either party has remarried (Exhibit B).

The applicant responded with a signed and notarized affidavit, 
dated 8 July 2014, which indicates that she has not remarried 
(Exhibit C).





The service member responded with a signed and notarized 
affidavit, dated 29 July 2014, which indicates he is currently 
married effective 16 November 2002 and his current spouse did 
not complete a Release of Benefits (Exhibit C).


AIR FORCE EVALUATION:

AFPC/DPFFF makes no recommendation.  DPFFF states there is no 
evidence the applicant or service member submitted a valid 
former spouse election during the required time following their 
divorce.

The former member also did not notify the Defense Finance and 
Accounting Service - Cleveland Center (DFAS-CL) of the change in 
his current marital status or request that spouse coverage be 
established on her behalf.

Premiums for SBP spouse coverage was suspended effective the 
date of their divorce.  The applicant’s current spouse became 
the eligible spouse beneficiary by operation of the law on the 
first anniversary of their marriage.

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


APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant and former service member on 10 October 2014 for 
review and comment within 30 days (Exhibit E).  As of this date, 
the applicant has not responded.

The former service member states that on 5 November 1996, he 
notified DFAS of his divorce to his former spouse and the terms 
of the divorce regarding SBP.  In regards to his current spouse 
- he believes he mailed copies of the marriage certificate to 
both the VA and DFAS.  He did not request SBP benefits for his 
current spouse because he did not know that she was eligible.  
He was unaware that his former spouse neglected to complete her 
deemed election form in the required time frame.

The applicant’s complete response is at Exhibit F.










AIR FORCE EVALUATION:

AFPC/DPFFF makes no recommendation.  DPFFF was asked to relook 
the case in light of additional documentation the applicant 
provided.

On 4 November 1996, the applicant sent a fax to DFAS-CL, and 
attached the first page of his divorce decree, requesting his 
SBP be changed from spouse to former spouse coverage.  On 
5 November 1996 he sent a letter to DFAS notifying them of his 
divorce and his former spouse’s eligibility to receive 
50 percent of his retired pay and SBP.  He also requested that 
DFAS establish an account in his former spouse’s name to receive 
benefits and to mail the documents for her to establish an 
account.  Upon receipt of the divorce decree, DFAS suspended the 
spouse’s coverage, effective the date of divorce.

Unfortunately, his request to change from spouse to former 
spouse coverage was invalid because he failed to complete a 
DD Form 2656-1, SBP Election Statement for Former Spouse 
Coverage, and he failed to provide a copy of the Property 
Settlement Agreement, incorporated in the divorce decree, that 
awarded his former spouse SBP coverage.  There is no evidence 
his former spouse submitted a request to the Defense Finance and 
Accounting Service (DFAS) for former spouse coverage to be 
deemed on her behalf within the first year following divorce.  
The applicant claims he mailed a copy of his marriage 
certificate to both the Veterans Administration and DFAS; 
however, DFAS records do not reflect the current spouse’s name 
as the spouse beneficiary, and SBP premiums were not reinstated.  
It is not the VA’s responsibility to notify DFAS of marital 
status changes that could affect SBP eligibility.  The member is 
ultimately responsible for notifying DFAS of any marital status 
changes, and when the status of an SBP beneficiary changes.  His 
current spouse became the eligible spouse beneficiary by 
operation of the law on the first anniversary of their marriage.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant and former service member on 27 February 2015 for 
review and comment within 30 days (Exhibit H).  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 an injustice.  While we 
acknowledge the applicant’s assertion that an addendum to a 
stipulation of judgment for divorce ordered that SBP benefits be 
paid to her as the former spouse, she failed to convert the 
coverage to former spouse coverage within one year of their 
divorce as required by law.  However, in this case, the 
applicant has indicated that there is a potential competing 
interest for SBP benefits as her former spouse remarried.  The 
AFBCMR has consistently refused to grant similar applications 
where there is a spouse with a legal entitlement to this 
benefit, unless that spouse relinquishes his/her right to this 
entitlement in a notarized statement.  Therefore, absent the 
consent of the former member’s spouse, we do not find there are 
extraordinary circumstances here that would cause us to render a 
determination that would serve to extinguish the legal rights of 
another party in contravention of our long-standing practice in 
similar cases.  Therefore, because such an action would deprive 
the former member’s spouse of a legal entitlement, granting the 
application is not appropriate in these circumstances.  
Therefore, in the absence of evidence to the contrary, we find 
no basis to recommend granting the relief sought in this 
application.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of an error or an 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-2014-02658 in Executive Session on 23 July 2015, under 
the provisions of AFI 36-2603:







The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-02658 was considered:

  Exhibit A.  DD Form 149, dated 27 June 2014, w/atchs.
  Exhibit B.  Letters, SAF/MRBR, dated 2 July 2014.
  Exhibit C.  Affidavits, Applicant, dated 8 July 2014 and 
	            Service Member, dated 29 July 2014.
  Exhibit D.  Letter, AFPC/DPFFF, dated 19 August 2014.
  Exhibit E.  Letter, SAF/MRBR, dated 10 October 2014.
  Exhibit F.  Letter, Service Member, dated 1 November 2014,
              w/atchs.
  Exhibit G.  Letter, AFPC/DPFFF, dated 2 February 2015.
  Exhibit H.  Letter, SAF/MRBR, dated 27 February 2015.