RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02372
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Her late former spouse’s records be corrected so that she may be eligible for a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

The deceased member cancelled the SBP program on 3 May 00, under the influence of a family member, just three months before he passed away.

In support of her appeal, applicant submitted a copy of their marriage certificate and a copy of the former member’s death certificate.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The decedent was married and he elected spouse and child coverage based on full retired pay prior to his 1 Apr 78 retirement.  Records reflect he divorced on 17 May 82; in Oct 83, the spouse portion of the SBP was suspended and premiums refunded to the decedent retroactive to the date of divorce.  The decedent and the applicant were married on 28 Dec 83.  They were divorced on 13 Aug 1999.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended denial.  They state that a person’s eligibility as an SBP spouse beneficiary terminates upon divorce.  However, the law provides two mechanisms for changing spouse coverage to former spouse coverage, which must be exercised within the first year following divorce.  The retiree may file an election change, or the former spouse may request the retiree be deemed to have made such a change on his or her behalf as long as legal documentation is provided that the member agreed or that the court ordered the member to establish former spouse coverage.  If neither the member nor the former spouse requests the election change within the one-year eligibility period, former spouse coverage may not be established thereafter.  Although SBP premiums may continue to be deducted from the member’s retired pay following divorce, the former spouse is not eligible to receive annuity payments in the event of the member’s death.

The decedent and the applicant were married on 28 Dec 83; in Sep 85, the decedent notified the finance center of the change in his marital status and spouse coverage was reinstated.  They divorced on 13 Aug 99, and the separation agreement, incorporated in the divorce decree, states that each party shall be the sole owner of their retirement accounts.  The parties further agreed to waive all rights as “widow, widower, heir, distributee, survivor or next of kin” to each other’s estate.  

The finance center received correspondence on 3 May 00 in which the member requested the cancellation of his SBP and indicated a previous request had been misplaced in the mail system.  The spouse portion was suspended and premiums were refunded retroactive to the date of divorce.  The decedent died on 1 Aug 00.  

It is ultimately a retiree’s responsibility to elect the SBP coverage that suits his or her families’ needs.  The member could have elected former spouse coverage voluntarily within the first year following divorce, but failed to do so.  Instead, he requested SBP coverage be cancelled, indicative of his intent not to maintain SBP coverage on the applicant’s behalf.  There is no documentation to substantiate the applicant’s claim that the decedent was incompetent.

A complete copy of the evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the Air Force evaluation with a personal note attached indicating that the decedent was feeling very sick prior to his death.

Applicant’s response to the evaluation, with attachment, is at 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 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.  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 02-02372 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 22 Jul 02, w/atchs. 
    Exhibit B.  Letter, HQ AFPC/DPPTR, dated 14 Aug 02.
    Exhibit C.  Letter, SAF/MRBR, dated 16 Aug 02.
    Exhibit D.  Letter, Applicant, dated 11 Sep 02, w/atchs