RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02894
		INDEX CODE:  137.04

  	COUNSEL:  NONE

  XXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

During his retirement processing, he was offered the opportunity to enroll under SBP.  At that same time he was going through a divorce and decided to opt-out of the SBP.  However, when he subsequently inquired about the SBP for his current wife, he was told he could not elect SBP coverage because he had declined it at retirement.

He was never advised that declining SBP coverage meant for the rest of his life or that it was a one-time deal for only the wife he was married to at the time.  Had he known that it was for the rest of his life he would have never declined SBP coverage.  For that reason, he feels that it is unfair not to allow him to exercise his right to use the SBP.

In support of his request, applicant submits a personal statement;  a copy of his DD Form 2656, Data for Payment of Retired Personnel, dated 31 Dec 97, and a certification of SBP Briefing, signed and dated 31 Dec 97.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant and his first wife elected child only coverage based on full retired pay prior to his 1 Jun 98 retirement.  Applicant’s spouse concurred in the election and the parties subsequently divorced.  Defense Enrollment Eligibility Reporting System (DEERS) records reflect the applicant remarried his second wife on 29 Jun 02, but neither the applicant’s three natural children nor his two stepchildren are currently enrolled in DEERS.  Child only cost continues to be deducted from his retired pay and Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) records reflect at least one child is eligible to receive SBP payments in the event of the applicant’s death.

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AIR STAFF EVALUATION:

HQ AFPC/DPPTR reviewed this application and states that on 31 Dec 97, the applicant signed the SBP Report-Individual Personnel (RIP) used by the counselor at the base during his one-on-one briefing and provided to him a copy as a record of critical information about the Plan.  Item H states that the SBP election is basically irrevocable, but some changes are authorized; H3 further explains that members, who have no eligible spouse or child at retirement, may elect SBP for these dependents within one year of acquisition.

If the applicant had elected spouse coverage for his first wife, that portion of his SBP could have been suspended following their divorce and, absent an election for former spouse coverage, his second wife would have become the eligible spouse beneficiary upon the first anniversary of their marriage.  The laws controlling the SBP do not permit the applicant to provide coverage for his second wife now, or at any other time, unless Congress mandates an open enrollment period.

They found no evidence of error or injustice in this case; therefore, they recommend denial of the request.

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

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APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

He argues that he was not briefed on the policy concerning election of SBP spousal coverage and the suspension of that portion of the coverage after divorce.  He disagrees with the evaluation and believes that because he was not fully briefed an inequity has been done to him.

Applicant’s complete response 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.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2003-02894 in Executive Session on 27 January 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Aug 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ USAF/DPPTR, dated 27 Oct 03.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Nov 03.
    Exhibit E.  Letter, Applicant, undated.