RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01199
		INDEX CODE:  137.00
	COUNSEL:  NONE

		HEARING DESIRED:  NOT INDICATED

MANDATORY COMPLETION DATE:  19 OCTOBER 2007

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APPLICANT REQUESTS THAT:

Examiner’s Note:  The applicant is the first former spouse of the deceased service-member.

Her late former husband’s records be corrected to show that he elected former spouse coverage under the Survivor Benefit Program (SBP) naming her as the beneficiary.
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APPLICANT CONTENDS THAT:

She was married to the deceased during his entire active duty career (22 years - they were married a total of 29 years).  She was the homemaker and mother of their three children.  

In support of the application, the applicant submits her personal statements, a copy of a newspaper obituary, a copy of a resume, copies of letters of appreciation, a copy of a letter to the Defense Finance Accounting Service, Cleveland (DFAS-CL), a copy of a letter from DFAS-CL, a copy of the former service member’s divorce decree from his second marriage, a copy of his retirement order, an official copy of his death certificate, and a copy of their marriage certificate.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

According to the information provided by the Air Force office of primary responsibility, the applicant and member were married on 29 May 52 and the member elected spouse and child SBP coverage based on full retired pay prior to his 1 Oct 73 retirement.  The member remarried on 10 Jul 81 and submitted a request to remove the applicant from the SBP and add his current spouse to the plan in Oct 81.  

The member and his second wife divorced on 28 Mar 00 and in the divorce decree she relinquished ownership to the SBP.  On 12 Apr 00, the member requested that DFAS-CL remove his former second spouse as the eligible beneficiary and add the applicant to the SBP.  DFAS-CL suspended the member’s spouse coverage and monthly premiums, but did not establish former spouse coverage.  The member died on 20 Feb 07.

Examiner’s Note:  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 remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial.  DPPRT states eligibility to receive a spouse SBP annuity terminates upon divorce. Former spouse coverage under the SBP was not an option for retired members until passage of Public law (PL) 98-94, 24 Sep 83.  Subsequently, former spouse coverage with the same costs and provisions as spouse coverage was permitted following enactment of PL 99-145 (8 Nov 85).  The legislation authorized a one-year period (8 Nov 85 – 7 Nov 86) for SBP participants to elect coverage for their former spouses.  Such former spouse election became effective 1 Mar 86, or the first day of the month following receipt of a valid election, if later.

DPPRT states there is no error or injustice in this case and no basis in law to approve this request.  However, if the Board’s decision is to grant relief, the member’s record should be corrected to show that on 1 Mar 86 he elected to change SBP spouse to former spouse coverage based on full retired pay.  An effective date of 1 Mar 86 is appropriate as this is the first date former spouse coverage could have been established under the same costs and conditions as spouse coverage.

HQ AFPC/DPPRT’s evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response dated June 22, 2007, the applicant states her former spouse was very sorry and surprised when his request to name her his SBP beneficiary was denied.  His health had failed and he was unable to keep up with the SBP laws.  Her husband paid SBP premiums for 28 years and now has no beneficiary.  She is 78½ years of age and has never remarried.  

The applicant’s complete response is at 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 file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  We note the applicant's contentions that the former servicemember would have elected her to remain the eligible SBP beneficiary after their divorce; however, neither party was aware that this option existed.  After thoroughly reviewing the documentation submitted with this appeal, the Board majority agrees it is reasonable to believe the deceased former servicemember had intended for the applicant to be the recipient of his SBP annuity.  In this respect, the applicant demonstrated his intent to provide coverage for his former spouse as evidenced by his actions taken on 12 Apr 00, as indicated above.  In consideration of the totality of the circumstances, we recommend his records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 1 Mar 1986, he elected to change spouse coverage to former spouse coverage based on full retired pay under the Survivor Benefit Plan, naming APPLICANT as former spouse beneficiary.

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The following members of the Board considered this application in Executive Session on 26 Sep 07, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Panel Chair
				XXXXXXXXXX, Panel Member
				XXXXXXXXXX, Panel Member

By majority vote, the Board recommended granting the requested relief.  XXXXXXXXXX voted to deny the application but does not desire to submit a Minority Report.  The following documentary evidence was considered with AFBCMR BC-2007-01199:

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Apr 07, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPPR, dated 1 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Jun 07.
    Exhibit D.  Letter, Applicant, 22 Jun 07.

		XXXXXXXXXX
		Panel Chair