RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01448
		INDEX CODE:  137.04

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Her now deceased, former spouse’s military record be changed to show he made a timely Survivor Benefit Plan (SBP) election for former spouse coverage on her behalf.

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APPLICANT CONTENDS THAT:

Her former spouse died on 25 April 2007 and she was told he had terminated his SBP election made during their divorce.  On 3 May 2007, she informed the Beale AFB Casualty Assistance Representative that she wished to apply for her SBP entitlement as a former spouse.

In support of her appeal, the applicant has provided a marriage certificate, death certificate, retirement orders and a divorce decree.

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

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STATEMENT OF FACTS:

The member and the applicant were married on 21 July 1962 and he elected spouse and child SBP coverage based on full, retired pay prior to his 1 September 1979 retirement.  The parties divorced on 31 December 1990 and in the divorce decree, the member agreed to elect an SBP annuity for the benefit of the applicant.  There is no evidence either party submitted a valid former spouse election during the required time following their divorce.  Premiums for the spouse’s portion of the SBP coverage continued to be deducted from the member’s retired pay until July 1991, when the Defense Finance and Accounting Service (DFAS) retroactively suspended spouse coverage and issued a refund of overpaid premiums.  Records show that the member married his current spouse on 17 July 2003 but he did not notify DFAS of the change in his marital status nor request coverage be established on his current spouse’s behalf.

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AIR FORCE EVALUATION:

AFPC/DPPRT, based on guidance by the AFBCMR on 18 March 2004, forwards this request without a recommendation because it involves two potential SBP beneficiaries.  

DPPRT’s complete evaluation is at Exhibit B.

SAF/MRB (AFBCMR Legal Advisor) recommends denial.  The AFBCMR legal advisor states despite the 1990 court order directing the member to make the election, federal law makes the election unavailable when the deemed election is not timely effected.

MRB’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the SAF/MRB evaluation was forwarded to the applicant on 18 July 2007 for review and comment within 30 days.  As of this date, this office has received no response.

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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 an 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.  We note neither the applicant, nor the former spouse filed the necessary SBP election applications that would have provided the former spouse SBP coverage within the one-year time frame allotted them to do so.  Therefore, we agree with the opinion and recommendation of the SAF/MRB legal advisor and adopt his 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-2007-01448 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 May 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 5 June 2007.
    Exhibit C.  Letter, SAF/MRB, dated 27 June 2007.