DRECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01019
		INDEX CODE: 137.00

	APPLICANT (Deceased)	COUNSEL:  None

	SSN	HEARING DESIRED:  Yes

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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:

Public Law (PL) 92-425, effective 21 Sep 72, which established the SBP, provided the provision whereby if service members waived military pay to enhance their subsequent Civil Service (CS) retirement and elected CS survivor coverage, they may not continue to participate in the military SBP.  The applicant being the previously eligible beneficiary will not be entitled to an annuity based on her former spouse's retired pay.  If the service member combined his military service time to increase his CS retirement and did not elect CS SBP, his military SBP will remain in effect and the service member must directly remit SBP costs to the finance center.

The 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. 

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AIR FORCE EVALUATION:

AFPC/DPPTR states the applicant and the service member were married on 11 Jun 66.  The service member, prior to his 1 Jul 73 retirement, elected spouse and child coverage based on full retired pay.  The Defense Finance and Accounting Service (DFAS) records reflect that the service member elected the civil service (CS) survivor annuity plan prior to his retirement from that agency and waived his Air Force (AF) retired pay effective 31 Mar 92.  The costs associated with his AF SBP were terminated at that time.  The applicant submitted a copy of a 11 Jun 92 letter from the Office of Personnel Management (OPM) reflecting the service member elected her as his beneficiary and that she would be entitled to a survivor's annuity.  There were no children eligible for benefits after Sep 94.  The applicant and the service member separated on 28 Aug 96 and the separation agreement ordered the service member to continue the SBP coverage for the applicant.  The service member and the  applicant's 20 Jun 00 divorce decree incorporated the previous property settlement, but specified that the benefit was incorrectly identified as "military retirement" and should reflect the service member's "Civil Service Retirement benefits."  The service member and XXXXX were married on 23 Jun 00 and he died on 20 Nov 01.  If the service member had not elected CS SBP when he waived his AF retired pay, but retained the applicant's AF SBP, and submitted a valid election to change the SBP coverage from spouse to former spouse following their divorce, the applicant would have received 35 percent of the service member's AF retired pay at the time of his death.  The service member, in combining his AF service with his CS and electing CS survivor annuity, relinquished his military retired pay and the applicant's AF SBP coverage.  DPPTR suggests the applicant contact OPM to seek corrective action through their agency.  Based on the evidence provided they recommend 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 12 Apr 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 timely filed.

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 service member combined his AF service with his CS and elected CS survivor annuity, thus, relinquishing his military retired pay and the applicant's AF SBP coverage.  The Board further agrees with DPPTR and recommends the applicant seek corrective action through OPM.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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 02-00874 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 18 Mar 02, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 8 Apr 02.
	Exhibit C.	Letter, SAF/MRBR, dated 12 Apr 02.