RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00978
		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 made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The divorce decree ordered the servicemember to provide former spouse coverage for her under the SBP, but neither the servicemember nor she was aware of the one-year requirement to submit an election for former spouse coverage.

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

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STATEMENT OF FACTS:

The servicemember and the applicant were married on 7 July 1962.  The servicemember, prior to his 1 November 1982 retirement, elected SBP spouse and child coverage based on full retired pay.  The applicant and the servicemember were divorced on 15 July 1985 and the marital settlement agreement which was incorporated in the divorce decree reflects the servicemember’s willingness to maintain the survivorship option on the applicant’s behalf.  Neither the servicemember nor the applicant made an election for former spouse coverage within one-year following their divorce.  The servicemember married D. on 26 September 1992 and did not establish SBP coverage for her.  In July 2001, the servicemember requested the finance center to change his spouse beneficiary to D.  The servicemember died on 2 February 2004.  The servicemember’s widow (D.) is receiving the SBP annuity.

The applicant submitted a DD Form 149 dated 8 March 2004, requesting her former late-husband’s records be corrected to reflect he elected former spouse coverage on her behalf.  On 19 May 2004, Air Force Board for Correction of Military Records (AFBCMR) returned the request without action to the applicant on the basis the AFBCMR cannot rule on a disputed claim to a benefit that only one person can receive (Exhibit D).  

AFBCMR further advised the applicant to seek resolution through the courts.  However, upon further review of the request, the applicant’s case was reopened (Exhibit E).

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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 B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23 April 2004, for review and response.  As of this date, no response has been received by this office.

On 19 May and 28 July 2004, the Board staff forwarded the applicant copies of memorandums from HQ USAF/JA and AFPC/DPPTR which will be considered in the processing of his application (Exhibits D & E).

The applicant reviewed the Air Force evaluations and was surprised that her former spouse submitted a letter requesting his current spouse as the beneficiary for SBP when the divorce decree ordered him to maintain her as the beneficiary.  Furthermore, she was informed the law did not allow for a Deemed Election for SBP in 1985 and an amendment allowing a deemed election went into effect on 1 March 1986 and was not retroactive.  Her former spouse was responsible for making an SBP election as a person with an insurable interest rather than a former spouse (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 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 an error or an injustice.  We do not take issue with the applicant’s contention that her divorce decree ordered her deceased former husband to provide former spouse coverage for her under the SBP, but he did not do so.  However, we agree with the opinions and the recommendations of USAF/JAA and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The applicant believes the law did not allow for a deemed election for SBP in 1985 and the amendment allowing a deemed election was not effective until 1 March 1986 and the amendment was not retroactive.  Public Law 98-525, effective 19 October 1984, allowed for deemed elections by former spouses within one-year of court order requiring SBP be established.  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 following their divorce.  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-2004-00978 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 8 Mar 04, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 20 Apr 04.
	Exhibit C.	Letter, SAF/MRBR, dated 23 Apr 04.
	Exhibit D.	Letter, AFBCMR, dated 19 May 04, w/atchs.
	Exhibit E.	Letter, AFBCMR, dated 28 Jul 04, w/atchs.
	Exhibit F.	Applicant’s Response, undated.