RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01757
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Corrective action be taken to enable her to receive a Survivor Benefit Plan (SBP) annuity payment.
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APPLICANT CONTENDS THAT:

The Air Force is in breach of contract, as it did not notify her that SBP had changed.  Further, she states the Air Force is negligent in that they did not answer her query regarding changes to SBP.  She states she was the beneficiary of the now deceased, former members’ SBP election from his retirement in 1971 to their divorce in 1981.  A great deal of money has been invested in the plan for which she was intended to benefit.

In support of her appeal, the applicant has provided copies of her deceased spouse’s death certificate, several pieces of correspondence between her and the Defense Finance and Accounting Service (DFAS), and a marriage certificate.

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

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STATEMENT OF FACTS:

The deceased former member and the applicant were married on 6 August 1955.  He elected spouse and child coverage under the Retired Serviceman’s Family Protection Plan (RSFPP) prior to his retirement on 1 May 1971.  During SBP’s initial enrollment period he elected spouse only coverage based on full, retired pay.  On the effective date of their divorce, 19 November 1981, RSFPP and SBP coverage were suspended.  The decedent elected former spouse coverage under the insurable interest option during the open enrollment following the implementation of public law (PL) 98-94.  The decedent remarried on 7 May 1988 and converted his insurable interest coverage to spouse coverage for his current spouse.  His current spouse has been receiving SBP annuities since his death on 12 March 2003.
AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states that even though the Defense Finance and Accounting Service (DFAS) failed to notify the applicant of the change in her SBP status, there is no provision in the statute that indicates such failure to notify the former spouse voids an otherwise valid election.  DPPTR states the applicant’s contention that a lot of money was invested in the plan which was meant to benefit her is without merit.  Until October 1983, there was no provision to extend coverage to a former spouse.  Her claim that she relinquished her claim to SBP because the decedent told her he could no longer afford the payment has not been substantiated.  Additionally, while there is no evidence the decedent took any action to change his SBP election to favor his former spouse, the record does show valid action on his part to make sure his current spouse was covered.

DPPTR’s complete evaluation is at Exhibit C.

On 6 August 2004, the Board staff provided the applicant with copies of advisory opinions from the Office of the Judge Advocate General on similar cases that would be provided to the Board for consideration (Exhibit E).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends her former spouse employed deception when he asked her to relinquish any claim to an SBP annuity due to his assertion that he was no longer able to afford the coverage.  Her daughters have included statements substantiating the deception.  She wrote to the Air Force and asked about changes to the plan but her letter was never answered.  She notes 10 United States Code (U.S.C.) 1450(f)(1) that states in all cases, the Air Force is required to notify the former spouse of any changes in SBP election.  The Air Force did not answer her letter nor did they meet the one-year time frame to notify former spouses of changed elections as required by 10 U.S.C. 1450(f)(3).  Her daughters confirm their father told them that their mother remained the SBP beneficiary.  The applicant contends it is beyond common sense to think she would have voluntarily relinquished her benefit to his current wife who had no vested interest in the plan and did not know of the plan’s existence until years after his retirement from the Air Force.

She notes the JAA advisories’ comment concerning mandatory notification of any election changes where JAA states “However, no such notification requirement exists with regard to former spouses.”  She takes issue with that statement and provides a document she signed in November 1984, which mandates notification to an ex-spouse when any changes are made to the plan.  She states that for the military to dismiss as inconsequential, their responsibility to notify her of any change to the plan as incomprehensible as her financial well being depended on being fully informed.  She prays that current spouses of military members will not receive the same shameful treatment from the military should they find themselves ex-spouses, particularly those who have been directly involved in the military member’s assignment to war zones.

Applicant’s complete response, with attachments, is at Exhibit F.

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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; however, we agree with the opinion and the recommendation of USAF/JAA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Neither the servicemember nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage.  While we are not unsympathetic to the applicant’s dilemma, at this time she is not the legal beneficiary of the SBP entitlement.  However, if the decedent’s current spouse provides a notarized statement relinquishing her entitlement to the SBP annuity, the Board would be willing to reconsider this request.  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-2003-01757 in Executive Session on 2 December 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 May 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 20 Jun 03.
    Exhibit D.  Letter, SAF/MRBR, dated 27 Jun 03.
    Exhibit E.  Letter, AFBCMR, dated 6 Aug 04, w/atchs.
    Exhibit F.  Letter, Applicant, dated 13 Aug 04.

                                   Panel Chair