RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00884
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Her now deceased former spouse’s military records be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage on her behalf.

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APPLICANT CONTENDS THAT:

She had been receiving funds as a former spouse until his death on 20 October 2006.  There has been a court order in place since May 1988 to prevent this from happening.  She is a paraplegic at age 73 and confined to a wheel chair and her house.  She has become dependent on the funds she had been receiving and now does not have enough money to live on.

In support of her appeal, the applicant has provided copies of their divorce decree, his death certificate, and the SBP form they both signed in 1988.

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

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STATEMENT OF FACTS:

The now deceased member and the applicant were married on 26 May 1973 and he elected child only coverage based on a reduced level of retired pay prior to his 1 January 1980 retirement.  The parties divorced on 11 May 1988 and the court found that should the member be eligible to participate in the SBP on the applicant’s behalf, that he do so.  He attempted to elect former spouse coverage on 13 December 1988 but his request was not valid.  The law at the time of the member’s retirement did not require that the spouse concur in the election and he did not elect SBP coverage on her behalf at that time.  Further, the laws controlling SBP preclude a married member who declined spouse coverage at the time of retirement from providing SBP former spouse coverage following divorce unless Congress authorized an open enrollment.  Retirees were permitted to elect former spouse coverage during the one-year open enrollment periods authorized by Public Laws (PLs) 101-189, and 105-261 (1 April 1992 – 31 March 1993 and 1 March 1999 – 29 February 2000, respectively).  The enrollment packages advising retirees of the opportunity to make an election or change their SBP coverage, as well as the necessary forms, were included in both the February 1992 and the January 1999 editions of the Afterburner, New for USAF Retired Personnel.  These issues and others published during those periods were sent to the correspondence address members had provided the finance center and contained points of contact for retirees to use to gain additional information.

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AIR FORCE EVALUATION:

AFPC/DPPRT recommends denial.  DPPRT states the member had two opportunities to elect former spouse SBP coverage on the applicant’s behalf during both the 92-93 and the 99-00 open enrollment periods, but he did not.  As there is no evidence of Air Force error or injustice in this case DPPRT recommends her request be denied.

DPPRT’s complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends she now believes her former spouse had named her as beneficiary, and, at a later date was able to reverse his decision as she was not required to be notified of his actions.  In regards to open seasons, she asks that the Board remember that they were divorced and that her former spouse could have cared less if she had any benefits from him or not.  She and he had both signed the Air Force form 1581 (Election Statement for Former Spouse Coverage) and it was submitted within one year of their divorce.  She thought everything was as it should be.  She was able to work full time until 2003 and has been lucky to remain in her home since 1976.  With the loss of income, she can only imagine what the future holds for her in her current condition.

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that the decedent’s records should be changed to make the applicant an eligible former spouse SBP beneficiary.  The law precludes any attempt to establish former spouse coverage when spouse coverage was not elected at the time of retirement – outside an open season authorized by Congress.  In this light, we note that after the initial invalid election attempt, the decedent had opportunities during two subsequent open seasons prior to his death to make a valid former spouse election as required by court order.  Neither open season was taken advantage of.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice, and 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-2007-00884 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Panel Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Mar 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 26 Apr 07.
    Exhibit C.  Letter, SAF/MRBR, dated 4 May 07.

                                   XXXXXXXXXX
                                   Panel Chair