RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02706
		INDEX CODE:  137.00

		COUNSEL:  NONE

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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 decedent agreed to her receiving half of his retirement and was supposed to have taken care of survivor’s benefits, as told to her and her attorney at the time of divorce.

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

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant and the decedent were married on 2 Jul 55; however, the decedent declined SBP coverage prior to his 1 Jan 81 retirement.  The parties divorced on 6 Nov 85, and the court order did not refer to the SBP.  On 30 Jul 01, the decedent remarried. He died on 21 Jun 02.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR reviewed this application and recommended denial.  They stated the laws controlling the SBP preclude a married member, who declined spouse coverage at the time of retirement, from providing SBP former spouse coverage following divorce unless Congress authorizes an open enrollment.  Retirees were permitted to elect former spouse coverage during the one-year open enrollment periods authorized by Public Laws (PLs) 101-189 and 105-261 (1 Apr 92 – 31 Mar 93 and 1 Mar 99 – 29 Feb 00, respectively).  Enrollment packets, advising retirees of the opportunity to make an election or change their SBP coverage, as well as the form to use, were included in both the Feb 92 and Jan 99 editions of the Afterburner, News for USAF Retired Personnel.  These issues and others published during those periods were sent to the correspondence address members had provided the finance center  and contained points of contact for retirees to use to gain additional information.

While the decedent may have agreed to provide half of his retired pay to the applicant, division of retired pay is not considered and should not be interpreted as pertaining to the SBP.  SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage.  The decedent could have elected former spouse SBP coverage on the applicant’s behalf during both enrollment periods, but he failed to do so.

A complete copy of the evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant stated that since they did not trust her husband to do what he said, they thought the retirement included in the property settlement might help some but again they were wrong.

Applicant’s complete response to the evaluation is at Exhibit C.

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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 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 02-02706 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 16 Aug 02, w/atchs. 
    Exhibit B.  Letter, HQ AFPC/DPPTR, dated 17 Sep 02.
    Exhibit C.  Letter, SAF/MRBR, dated 20 Sep 02.
    Exhibit D.  Letter, Applicant, 2 Oct 02.