RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00823
		INDEX NUMBER:  137.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

Her former spouse told her that she would be entitled to two-thirds of his retirement pay in case something happened to him.  She was never told that she was dropped from the plan in 1987.  Her sister looked into the matter, and was told that she should have been notified and sent a form to sign, giving her the opportunity to pay for it.  She did not receive anything.

In support of her request, applicant provided a copy of her former spouse’s DD Form 214, Report of Separation from Active Duty, a Certification of Appreciation from the United States Air Force, a copy of his Certificate of Death, and copies of their Marriage License and Decree of Divorce.

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

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STATEMENT OF FACTS:

The applicant and the member were married on 16 Jun 56.  The former member elected spouse only SBP coverage based on a reduced level of retired pay prior to his 1 Sep 75 retirement.  The parties divorced on 16 Jul 79; the divorce decree was silent on the SBP.  Neither party remarried and the member died on 8 Jan 00.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommends denial.  The law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse’s eligibility.  The fact that the member paid spouse premiums until 1987 is not in itself evidence of his intent to provide coverage on the applicant’s behalf.  He 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 98-94, or to former spouse coverage with spouse features in 85-86, but failed to do so.  There is no indication a request for SBP protection was submitted on behalf of the applicant during either open enrollments authorized by PL 101-189 or 105-261 by the member or his guardian.  There is no evidence of Air Force error or injustice.

The complete Air Force evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responds through her United States Senator stating, in part, that her ex-husband simply neglected to request the required changes to his SBP that would have allowed her to receive benefits upon his death.  Her ex-husband had an ongoing battle with alcoholism for many years during their marriage, which may have hindered his ability to manage this matter responsibly before his death.  She was under the impression that when he signed up for spousal benefits, and paid into it, that it was not something that could ever be changed.  

Her complete submission, with attachments, is at Exhibit D.

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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 several opportunities to extend SBP coverage to the applicant during the open enrollment periods authorized by Congress; however, there is no evidence an election was made.  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‑2004-00823 in Executive Session on 20 July 2004, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Mar 04, w/atchs
    Exhibit B.  Letter, AFPC/DPPTR, dated 13 Apr 04
    Exhibit C.  Letter, SAF/MRBR, dated 16 Apr 04
    Exhibit D.  Letter, Senator XXXXX, dated 30 Apr 04