RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00024
		INDEX NUMBER:  137.00

		COUNSEL:  YES

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

She was told she was not entitled to the SBP because she and the member were divorced.

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

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STATEMENT OF FACTS:

The former service member and the applicant were married on     18 Dec 56.  DFAS records indicate that the former service member declined SBP coverage prior to his 1 July 1978 retirement.  The parties divorced on 11 Oct 95, and the member died on 19 Apr 97.  On 30 Apr 98, applicant petitioned the court and had the divorce decree set aside.  

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended denial and states, in part, since the member did not elect SBP coverage on the applicant’s behalf, she was not eligible to receive an SBP annuity upon his death regardless of her marital status.  The member had an opportunity to provide coverage for the applicant during the SBP open enrollment periods authorized by Public Laws (PLs) 97-35 (1 Oct 81 – 30 Sep 82) and 101-189 (1 Apr 92 – 31 Mar 93), but there is no evidence he made such an election.  During each enrollment period, members were advised by direct mail of their eligibility to make an election.  The fact that the applicant’s divorce was nullified is not sufficient justification to grant this request and would provide her an additional opportunity, not afforded to other survivors, whose sponsors declined SBP protection for them.

A complete copy of the Air Force evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant is again asking for fairness and justice in her appeal to the board, stating that her limited English vocabulary, lack of understanding of U.S. military procedures and regulations, further complicated her situation.  She requests the benefit of doubt be given to her, by correcting her deceased husband’s record to show he elected spouse SBP coverage based on full retired pay (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.  The former member had three opportunities to establish survivor coverage in the applicant’s behalf, prior to his 1978 retirement and during two subsequent open enrollment periods authorized by Congress.  However, there is no evidence he made such an election.  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 Docket Number BC‑2004-00024 in Executive Session on 14 April 2004, under the provisions of AFI 36‑2603:
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Dec 03, w/atchs
    Exhibit C.  Letter, AFPC/DPPTR, dated 6 Feb 04
    Exhibit D.  Letter, SAF/MRBR, dated 10 Feb 04
    Exhibit E.  Letter, Counsel, dated 23 Feb 04

                                   Panel Chair