RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02145
		INDEX CODE:137.00

	APPLICANT 	COUNSEL:  None

	SSN	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The effective date of the correction of his original application, for former spouse coverage under the Survivor Benefit Plan (SBP), be changed to 8 Dec 93 instead of 12 Jul 89, thus eliminating the debt he incurred.

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APPLICANT CONTENDS THAT:

When the Board corrected his original request it created a debt for him.  The Board should have made the effective date the same as the modification to the divorce decree.

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

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STATEMENT OF FACTS:

On 7 Mar 02, the Board considered and granted the applicant's request to show he elected former spouse coverage for an SBP annuity.

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. 

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AIR FORCE EVALUATION:

AFPC/DPPTR states Title 10 USC Section 1450 (f)(3) allows for an SBP election to be made on behalf of the former spouse, providing the election is submitted to the Defense and Finance Accounting Service within the first year following the divorce and, if enacted, the coverage will be retroactive to the date of the divorce.  If the original divorce decree is silent on SBP and is later amended or modified to incorporate SBP, the law provides the former spouse one-year after the date of the court order to request coverage for SBP.  The one-year opportunity does not apply after a modification to the divorce decree.

It appears the attorney for the former spouse attempted to act on her behalf in initiating a request for SBP based on the modification to the divorce decree.  But there is no evidence that the request occurred within the first year of the amended court order.  The language of the modification was imprecise, and if the election was sent to DFAS-CL it may have been set aside without action.

Until passage of Public Law (PL) 105-261, a deemed election was held in abeyance while the finance center notified the member to inform them that the effective date of the election and possible cost could be delayed to the end of the one-year period following the divorce providing the member had submitted a voluntary election.  In their original advisory they recommended granting the requested relief, but under the constraints of current statutory requirements; however, after consulting with legal counsel, they believe partial relief could be extended to the applicant by applying the standards that would have been in effect at time if the applicant had requested relief before the passage of PL 105-261.  DPPTR further states there is no evidence of an Air Force error or injustice and recommends the request be denied. 

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant, in support of his request, submitted letters from his former spouse's attorney, indicating the attorney, on behalf of his former spouse, submitted a request for SBP (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 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 applicant’s previous request to change his SBP spouse coverage to former spouse coverage was granted.  The applicant now contends the Air Force erred in determining his effective date of coverage believing it should be established on the date his divorce decree was modified; however, the applicant’s effective date for coverage was determined in accordance with the applicable law in effect at the time he applied for correction of records.   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 02-02145 in Executive Session on 21 January 2003, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 5 Jul 02, w/atch.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 22 Jul 02.
	Exhibit C.	Letter, SAF/MRBR, dated 26 Jul 02.
	Exhibit D.	Applicant’s Response, dated 22 Aug 02.