RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01168
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Corrective action be taken to show her entitlement to a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

She and the now-deceased, former member were married and she spent his entire Air Force career with him.  They had four children when he retired in 1973.  Their military life was not an easy one and their relationship totally disintegrated after his retirement leading to their divorce in 1978.  She states her divorce decree did not address the SBP annuity because her counsel advised her that once the member began receiving retired pay that neither the “…condition of the annuity nor the beneficiary could be changed.”  She is writing after 30 years because she recently found out the SBP plan could apparently be changed after the receipt of benefits.  During the time she has pursued the annuity she has been told many things such as she is no longer qualified because of their divorce, he did not pay premiums needed to cover the annuity after their divorce, and that her divorce decree would have had to spell out that the annuity be kept in effect after their divorce.  She could use the money as their daughter has a malignant brain tumor that friends and family are contributing towards to help defray hospital costs and other medical costs.  She had thought her share of the SBP annuity could have been her contribution to her daughter’s cost of care.  Nevertheless, she is also concerned for all the other spouses who spent 20 years in the Air Force supporting their husbands and because of rules now have nothing to show for it.

In support of her appeal, the applicant has provided a personal statement, copies of her marriage certificate, SBP election forms, her Air Force Certificate of Appreciation, her divorce decree, and her former husband’s death certificate.

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

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STATEMENT OF FACTS:

The now deceased, former member had elected spouse only SBP coverage based on a reduced level of retired pay prior to his retirement on 1 March 1973.  The applicant and the decedent divorced on 5 March 1976 and pay records show that spouse only coverage was suspended prior to 19 December 1978.  The decedent remarried on 9 May 1987 but did not notify the finance center of the change in his marital status and spouse coverage was not established on his new spouse’s behalf.  The decedent died on 29 March 2002. 

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states the law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage to former spouses even if they wished to do so.  However, the 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.  Subsequently he also could have ensured her entitlement by electing former spouse coverage during the one-year period authorized by PL 99-145; however, the finance center has no record showing he submitted such a request.  The facts of this case do not substantiate a reasonable expectation of the former member’s intent to provide SBP coverage for the applicant.

DPPTR’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states she can understand the dispute between current and former spouses as long as there had been no distribution of benefits as of the time of death.  She cannot comprehend beneficiaries being changed from one to another after the annuity had been fixed and had started disbursing benefits.  Nor can she comprehend the ability to change beneficiaries after one has been receiving benefits.  She argues that she receives two annuities that disallow any type of manipulation after the annuity has been fixed and benefits have begun.  She states her attorney, at the time of her divorce, drew up the agreement based on the fact that once the annuity was fixed and benefits began, that no changes could be made to the beneficiary.

Regarding the laws made in 1982, 1982, and 1984 – how was she, as the original spouse, to know that she had until 1 October 1985 to provide a request for an election? She points to 1998 legislation indicating a former spouse with a military record may be a proper claimant and should identify all former spouses whose husband had already retired from the military and was already receiving benefits at the time of the divorce and who was named beneficiary 

when the benefits were first established and fixed, is entitled to SBP benefits.

She notes her former spouse’s pay records show that he discontinued SBP spouse coverage in 1978.  She has yet to receive a copy of his pay records nor a copy of the notice to terminate benefits that he supposedly filed, both of which she asked for.  She thanks the Board for reopening her case on behalf of all the first wives (widows) who need to be treated fairly now and in the future.

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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 and are sympathetic to her unfortunate situation; 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.  It appears the member had at least two opportunities to elect SBP coverage for his former spouse and yet did not do so.  The evidence of record and of that presented to the Board show no reasonable expectation of his intent to provide said coverage.  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-2003-01168 in Executive Session on 24 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 Mar 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 6 May 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.
    Exhibit E.  Letter, Applicant, dated 3 Oct 03.

                                   Panel Chair