RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00935
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Corrective action be taken to show that her former, now deceased spouse, filed a timely election to change his Survivor Benefit Plan (SBP) coverage from spouse and child to former spouse following their divorce.

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APPLICANT CONTENDS THAT:

In 1993 she inquired as to her eligibility for SBP and it was determined that she was no longer eligible.  Her name was removed from eligibility.  Her then ex-husband filled out the required paperwork to reinstate coverage and sent it to Randolph Air Force Base (AFB) and to the applicant.  

In support of her appeal, the applicant has provided copies of her former spouse’s death certificate, the letter she received from the Air Force informing her of her ineligibility for SBP, a previous DD Form 149, Application for Correction of Military Record, an AF Form 1581, 

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

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STATEMENT OF FACTS:

The deceased member elected spouse and child SBP coverage based on full, retired pay prior to his 1 July 1981 retirement.  He and the applicant divorced on 9 July 1986 and the divorce decree ordered that no changes be made to the SBP coverage.  There is no evidence the deceased former member submitted the proper paperwork, within the one-year allotted time to do so, to change his coverage to former spouse.  Defense Enrollment Eligibility Reporting System (DEERS) records show he remarried on 21 February 1988 but again failed to notify the finance center of the change to his marital status.  In August 1993, the finance center received notification of the member’s 1986 divorce and suspended spouse SBP coverage.  On 11 August 1994, the member wrote the finance center and requested an update to his record to show his daughter as his youngest eligible child but again failed to report his marriage to that child’s mother.  The deceased member divorced again on 29 May 1997 and he died on 17 January 2003.  His daughter is currently receiving an SBP annuity.  

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states that neither the applicant nor the decedent submitted a valid request for former spouse coverage within one year following their divorce.  Records show that the applicant contacted DFAS in August 1993, inquiring about former spouse coverage on her behalf and was advised to submit a request for correction to change the status.  There is no record a request for correction was received.  DPPTR notes that should the AFBCMR grant the applicant’s request, the unpaid premiums that would have been deducted from the member’s retired pay through the day of his death (approximately $20,300) would be deducted from any annuity payment the applicant would be entitled to receive.

DPPTR’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the inclusion of her deceased spouse’s daughter to his SBP election should show that she was not added within the one-year allotted to do so and, while paternity of the daughter was never officially established, he did accept her as his own and also told her as well as his daughter and other’s that she could not have been his as he was sterile.  She argues that the Air Force did receive a copy of the original divorce decree and that she should’ve been notified at that time of any SBP problems.

Applicant’s complete response, with attachments, is at 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.  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.  There is no evidence available to show a valid election took place.  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-2003-00935 in Executive Session on 24 September 2004, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 18 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 03.
    Exhibit E.  Letter, Applicant, dated 22 Aug 04, w/atchs

                                   
                                   Panel Chair