RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00668
		INDEX CODE: 137.00

	APPLICANT (Deceased)	COUNSEL:  None

	SSN	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her former late-husband’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

The service member was ordered by the court to maintain her as his beneficiary under the SBP.

Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant and the service member were married on 14 Feb 47.  The service member, prior to his 1 May 69 retirement, elected spouse and child coverage under the Retired Serviceman's Family Protection Plan (RSFPP).  The RSFPP was terminated when the service member, during an open enrollment, elected coverage under SBP for spouse and child based on a reduced level of retired pay.  

The applicant and the service member's divorce was finalized on 20 Jan 75.  The divorce decree ordered that after the deduction of the SBP payment from the service member's military retirement pay, the service member would received 60 percent pay and the applicant would receive 40 percent of the retired pay.

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AIR FORCE EVALUATION:

AFPC/DPPTR reviewed the application and states in reviewing the service member's records there is no evidence that he attempted 
to terminate the applicant's SBP following their divorce; nor is there any evidence to indicate that he requested cessation of costs when the law permitted SBP premiums to cease after a spouse beneficiary loses eligibility, therefore, they cannot speculate regarding his intentions.  Furthermore, there is no indication that the service member believed, or expected the applicant remain as the beneficiary of his SBP after the costs of her coverage ceased.  Until the enactment of PL 98-525, there was no provision in the law permitting the courts to require former spouse coverage be continued if the retiree did not agree to that provision; therefore, the language in the applicant's divorce decree is not legally binding.  DPPTR recommends the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 22 Mar 02, for review and response.  As of this date, no response has been received by this office.

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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 error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The language in the divorce decree is duly noted; however, these provisions apparently are not legally binding because the law did not provide for former spouse coverage during the contested time period.  Further, we find no evidence that the service member ever requested former spouse coverage under the provisions of either PL 98-94 or 99-145.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number 02-00668 in Executive Session on 16 August 2002, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 20 Feb 02, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 14 Mar 02.
	Exhibit C.	Letter, SAF/MRBR, dated 22 Mar 02.