RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02024
		INDEX CODE:137.00

		COUNSEL:  None

		HEARING DESIRED:  NO

_________________________________________________________________

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).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The divorce decree ordered the servicemember to maintain the applicant as the beneficiary for any survivor benefits.  She was married and supported the servicemember throughout his military career.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the servicemember were married on 1 June 1957.  The servicemember on 19 September 1979, prior to his 60th birthday, elected spouse and child Reserve Component SBP (RCSBP) based on full retired pay.  The applicant and the servicemember were divorced 21 December 1999 and the separation and property settlement agreement, incorporated in the divorce decree, reflected the servicemember’s concurrence to maintain the applicant as a beneficiary to receive half of his net retirement.  There is no indication in the member’s records that either he or the applicant submitted a valid election for former spouse coverage within one year following their divorce.  The servicemember and . were married on 22 January 2003.  The servicemember failed to request the finance center establish spouse coverage on her behalf.  SBP premium were deducted from the servicemember’s retired pay until February 2003 when the finance center suspended the spouse portion of his SBP.  There is no evidence the finance center refunded the retroactive premiums.  The servicemember died on 27 February 2004.  To date, the widow has not applied for the SBP annuity.

_________________________________________________________________

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.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

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

The applicant reviewed the Air Force evaluations and states the divorce decree stated “The husband also agrees to take no action that might limit the wife’s ability to draw retirement after his death other than the divorce action.”  She believes his failure to submit the required paperwork or notify her of the requirement clearly put a limitation on her ability to receive retirement after his death.  She was not notified by her former spouse, the attorney or the military that an application needed to be filed in order for her to receive the benefit.  The fact that she was not notified that action needed to be taken in order for her to receive a benefit should not be held against her.  Also, her former spouse suffered a stroke which affected his short term memory, which may be a reason he failed to take action or notify her of the requirement for the benefit.  She was married to the servicemember for 42 years.  She was a dedicated spouse to him and his military career and she hopes she is awarded the proper restitution the servicemember intended for her to receive (Exhibit D).

_________________________________________________________________

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 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.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2004-02024 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 30 Jun 04, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 13 Jul 04.
	Exhibit C.	Letter, AFBCMR, dated 12 Aug 04, w/atchs.
	Exhibit D.	Applicant’s Response, dated 23 Aug 04.