RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00293
		INDEX CODE:137.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her former late-husband’s records be corrected to reflect he elected former spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The divorce decree ordered the servicemember to maintain the applicant as the beneficiary for SBP.

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

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STATEMENT OF FACTS:

The applicant and the servicemember were married on 15 July 1961.  The servicemember elected, prior to his 1 March 1978 retirement, spouse and child coverage under the SBP based on full retired pay.  The servicemember and the applicant were divorced on 18 December 1987.  The divorce decree ordered the servicemember to maintain the applicant as the beneficiary on his military pension with a full, complete and sole right of survivorship.  Neither the servicemember nor the applicant submitted a valid election for former spouse coverage within one year following their divorce.  SBP premiums were deducted from the servicemember’s retired pay until June 1989 when the Defense Finance and Accounting Service (DFAS) retroactively suspended the coverage and issued a refund of the premiums.  The servicemember married C. on 3 July 1990.  He died on 4 January 1996.  His widow (C.) is receiving the annuity.

The applicant submitted an earlier application requesting her former late-husband’s records be corrected to reflect he elected former spouse coverage on her behalf.  DPPTR based on previous guidance from the Board returned the application without action on 24 February 2004 and recommended the applicant seek correction through civil action.  (Exhibit B).

However, upon further review of the request, the applicant’s case was reopened.

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AIR FORCE EVALUATION:

AFPC/DPPTR indicates that since the request involves two potential SBP beneficiaries, no recommendation is provided.

A complete copy of the Air Force evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 12 August 2004, the Board staff forwarded the applicant copies of memorandums from HQ USAF/DPPTR and HQ USAF/JAA which will be considered in the processing of her application (Exhibit D).

The applicant reviewed the Air Force evaluations and provided copies of documents indicating the servicemember was not complying with the established court order (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 filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We do not take issue with the applicant’s contention her divorce decree ordered her deceased former husband to provide former spouse coverage for her under the SBP, but he did not do so.  This is indeed regrettable.  However, since neither the applicant nor her deceased former husband took the necessary actions to ensure she was provided former spouse coverage under the SBP within the one-year period in which they could have done so, it appears that the applicant has no legal entitlement to the relief sought.  It appears by operation of law, the widow of the deceased former member is his legal beneficiary and we do not find the failure of the deceased former member to comply with the terms of the divorce decree sufficient to perpetuate an injustice against the current spouse.  This is especially true since the applicant could have timely taken the necessary actions to ensure she would get the coverage agreed to in the divorce decree without the assistance or concurrence of her former deceased husband.  We are not unsympathetic to her dilemma.  However, in the absence of a showing the applicant is legally entitled to the relief sought or a waiver of entitlement from the current spouse, we conclude she has failed to sustain her burden of establishing she is the victim of either 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.

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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-2004-00293 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 1 Apr 02, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 24 Feb 04, w/atchs.
	Exhibit C.	Letter, HQ AFPC/DPPTR, dated 16 Jul 04.
	Exhibit D.	Letter, AFBCMR, 12 Aug 04, w/atchs.
	Exhibit E.	Applicant’s Response, undated.

					Panel Chair