RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02075
		INDEX CODE: 137.00, 137.01

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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This application for correction of the records of APPLICANT was submitted by -- (former spouse).

APPLICANT REQUESTS:

Corrective action that would entitle her to a Survivor Benefit Plan (SBP) annuity.
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APPLICANT CONTENDS THAT:

After their divorce, her ex-husband did not tell her she deserved anything.

In support of her request, the applicant submits a personal statement and additional documents associated with the issues cited in her contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The member voluntarily retired from active duty in the grade of master sergeant (E-7) on 1 Oct 72.  He had completed a total of 20 years and 5 days of active service for retirement.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.
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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommends the application be denied.  DPPTR stated that there is no error or injustice in this case.  The member and the applicant were married on 11 Apr 50, but he declined SBP coverage prior to his 1 Oct 72 retirement.  He elected spouse only SBP coverage based on a reduced level of retired pay on the applicant’s behalf during the open enrollment period (1 Oct 81 - 30 Sep 82).  The parties divorced on 26 Oct 82, but the finance center did not learn of the change in the member’s martial status until Mar 85.  At that time, spouse coverage was suspended and premiums deducted after the divorce were refunded to the member.  The member died on 2 May 91.  DPPTR indicated that the law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse’s eligibility.  Because more than six years have elapsed since the member’s death, payment of an SBP annuity would be barred by the statute of limitations.  DPPTR stated that there is no error or injustice in this case.  However, if the Board’s decision is to grant relief, approval should be contingent upon the recovery of premiums the member would have paid if he had made the election at that time.  The HQ AFPC/DPPTR evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 26 October 2001 for review and response.  As of this date, no response has been received by this office (Exhibit D).
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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 probable error or injustice.  We carefully reviewed the appliant’s submission in judging the merits of this case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  While the law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage, we note that the former member did have two other options to elect survivor coverage, but chose not to establish coverage on the applicant’s behalf.  Therefore, in the absence of evidence to the contrary, we find no basis on which to favorably consider the requested relief.
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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.
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The following members of the Board considered Docket Number 01‑02075 in Executive Session on 19 February 2002, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 6 Aug 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPTR, dated 19 Oct 01.
   Exhibit D.  Letter, SAF/MRBR, dated 26 Oct 01.