RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00708
		INDEX CODE:  137.04

XXXXXXXXXXXXXXXXXX	COUNSEL:  

XXX-XX-XXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her former late husband's records be corrected to show that he elected former spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

At the time of her former late husband’s retirement, they elected SBP coverage.  Subsequently, they were divorced and her divorce documents did not preserve survivor benefits as a former spouse.

In support of her request, applicant submitted a copy of the former service member’s Death Certificate; a copy of their divorce decree; and copies of the former service member’s DD Form 214 (Armed Forces of the United States for Report of Transfer or Discharge), retirement order, dated 19 Feb 70, and documents associated with his retirement for disability.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant and the former military member were married prior to him retiring for disability effective 6 Mar 70.  Because the decedent was incompetent for pay and records, an election was made on his behalf for spouse and child coverage under the Retired Serviceman’s Family Protection Plan (RSFPP).  The RSFPP was terminated in conjunction with the decedent’s open enrollment election (21 Sep 72 - 20 Mar 74) for spouse only SBP coverage based on a reduced level of retired pay.  The applicant and the decedent divorced on 30 Jan 78, the divorce decree was silent on the SBP, and premiums were suspended.  The former military member died on 1 Oct 01.  

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AIR STAFF EVALUATION:

HQ AFPC/DPPTR reviewed this application and states the law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse’s eligibility; therefore, amending the original divorce decree would not provide standing to establish SBP coverage to the applicant.  However, the former military member could have elected to change spouse coverage to the insurable interest type of former spouse coverage during the one-year period authorized by Public Law (PL) 98-94, or to former spouse coverage with spouse features in 85-86.  Finally, there is no indication a request for SBP protection was submitted on behalf of the applicant during either open enrollments authorized by PL 101-189 or 105-261 by the member or his guardian.

They found no evidence of error in this case and recommended that relief be denied.

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

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APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

A copy of the evaluation was forwarded to applicant’s counsel on 19 December 2003 for review and comment within 30 days.  As of this date, this office has received no response 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 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 BC-2003-00708 in Executive Session on 27 January 2004, under the provisions of AFI 36-2603:

           Panel Chair
           Member
           Member

   Exhibit A.  DD Form 149, dated 17 Feb 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPTR, dated 12 Dec 03.
   Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 03.

                                   
                                   Panel Chair