RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03521
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

When her husband reached retirement eligibility for pay purposes they had been married for a year and eight months.  Her late husband submitted his application for retirement on 16 Sep 88.  He submitted his DD Form 1883, Survivor Benefit Election, and AF Form 114, Arrears of Retired Pay Designation and/or Annuity Beneficiary Changes and designated her on both forms.  In Feb 94, the deceased member filed a Motion to Modify the Decree of Divorce, which was later dropped because it was too expensive.  The deceased member was placed in Horizon Hospice program in Apr 01 and the applicant says she became his full time caregiver.  She says that her late husband wanted her to have his survivor benefits and he fought like heck in court for his rights.

In support of her appeal, applicant provided her late husband’s death certificate, her marriage license, a copy of DD Form 1883 and AF Form 114, both dated 16 Sep 88.

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

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STATEMENT OF FACTS:

The Air Force stated that the decedent and his former spouse were married on 26 Feb 66.  Their divorce was finalized on 6 May 87.  The former spouse submitted a valid request for a deemed election to the finance center within the first year following their divorce.  

The applicant and the decedent married on 13 Jul 87.  The decedent was a Reservist who began receiving retired pay at age 60.  Prior to that date, he completed forms naming the applicant as the eligible SBP beneficiary for spouse only coverage based on full retired pay.  However, when his retired pay account was established, the finance center correctly disregarded his election and honored his former spouse’s valid deemed election for SBP former spouse coverage, which had been held in abeyance until the decedent’s retirement consummated.  The decedent’s former spouse’s birth date was properly reflected as the eligible former spouse’s date of birth and costs for her coverage were deducted from the decedent’s retired pay until his 14 Oct 02 death.  The decedent’s former spouse is currently receiving the full SBP annuity.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR reviewed this application and recommended denial.  They state that Public Law (PL) 98-525 permitted former spouses to submit a request to deem an SBP election change following divorce.  The member must have agreed to provide former spouse coverage and the former spouse’s deemed election must have been submitted before 1 Oct 85, or within one year of the date of the court order if later.  PL 99-145 authorized elections for former spouse coverage to have the same provisions as spouse coverage.  However, because of technical error in the language of PL 99-145 (subsequently corrected by enactment of PL 101-189), the SBP annuity of surviving former spouses age 62 or older is not reduced if the divorce was finalized before 29 Nov 89.  PL 105-85 removed the previous one-year time limit required for a retiree to submit an election to change from former spouse coverage to spouse coverage following the member’s remarriage.  However, this modification did not remove the requirement to have the divorce decree amended if applicable.

There is no record that the member sought to have the requirement to provide former spouse SBP coverage amended or rescinded.  It would be inappropriate to deny the former spouse an asset she was awarded by the court, or to provide SBP entitlement to this widow on the basis of the evidence presented.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 Dec 02 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

A copy of a HQ USAF/JAG opinion, dated 28 Apr 00, was forwarded to the applicant on 16 Jan 03 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

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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.  After careful consideration of applicant’s request and the available evidence of record, we agree with the opinion and recommendation of the Chief, General Law Division, that in the absence of a court decision, the AFBCMR is precluded from granting a request to correct military records, when that correction would take away the benefit from another.  If a court of competent jurisdiction determines that applicant is entitled to the SBP benefits claimed, she may reapply to the AFBCMR to request such correction as may be necessary to give effect to that determination.  In view of the foregoing, we find no basis to disturb the existing record.

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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 02-03521 in Executive Session on 8 April 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Oct 02, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPTR, dated 11 Dec 02, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.
    Exhibit E.  Letter, AFBCMR, dated 16 Jan 03, w/atch.