RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03335
		INDEX CODE:  137.00
		COUNSEL:  NONE

		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

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:

Her former spouse wanted to continue to support her at the time of his death.  She and her former spouse were married for 28 years, of which, 22 years were during his military career.  She helped her husband advance his military career by raising their children while he attended college courses and served on temporary duty assignments.  Neither were aware that SBP former spouse beneficiary notification needed to be submitted.  Her former spouse never elected his new spouse as SBP beneficiary which confirms that he did not intend for anyone else to be the beneficiary.

In support of the application, the applicant submits copies of the AF Form 694, Data for Payment of Retired Air Force Personnel, her divorce decree, her marriage certificate, her former spouse's death certificate, and his birth certificate.

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

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STATEMENT OF FACTS:

The former servicemember and the applicant were married on 14 Jan 67.  The member elected spouse only SBP coverage based on full retired pay prior to his 1 Apr 89 retirement.  The parties divorced on 22 Feb 95 and the divorce decree awarded the applicant one-half of the member's retired pay, but was silent on the SBP.  There is no evidence the member submitted a valid election to change his SBP coverage to former spouse during the required time following their divorce.  Defense Enrollment Eligibility Reporting System (DEERS) records show the member remarried on 7 Apr 06, but did not request that the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) establish SBP coverage on behalf of his second spouse.  The member's retired pay records continued to reflect the applicant's name and date of birth XXXXXXXXXX as the eligible spouse beneficiary.  However, his second spouse became the eligible spouse beneficiary on the first anniversary of their marriage by operation of law.  SBP premiums were deducted from his retired pay until his death on 8 Sep 07.  The member's widow is currently receiving a monthly SBP annuity of $1,954.

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/DPSIAR states based on guidance by the AFBCMR on 18 Mar 04, they are forwarding the request without a recommendation because it involves two potential SBP beneficiaries.

HQ AFPC/DPSIAR's evaluation is at Exhibit B.

The SAF/MRB Legal Advisor recommends denial.  The Legal Advisor states no extraordinary circumstances exist that would support not enforcing the deemed election requirement given the fact correcting the record in the manner requested will deprive the member's current spouse of benefits to which she is legally entitled.  

The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response dated February 20, 2008, the applicant states she took her duties as an Officer's wife very seriously.  When her husband remarried, he told her son that "his mother would be taken care of" and still paid the SBP premiums.  She does not feel she is depriving the current spouse as she was the one who worked side by side with her husband for 25 years of his military service.  She would not deprive the current spouse of her medical benefits.

Her complete response is at Exhibit D.

On 28 Feb 08, copies of the SAF/GCM and HQ USAF/JAA evaluations (mentioned in the SAF/MRB Legal Advisor opinion) were forwarded to the applicant for review and comment within 30 days.  To date, this office has not received a response (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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our decision that the applicant has failed to sustain her burden that she has suffered either an error or injustice.  Neither the applicant nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage.  In view of the foregoing, 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 probable 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 this application in Executive Session on 26 Jun 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered in AFBCMR BC-2007-03335:

    Exhibit A.  DD Form 149, dated, 8 Oct 07, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIAR , dated 8 Jan 08.
    Exhibit C.  Letter, SAF/MRB (Legal Advisor), dated 28 Jan 08.
    Exhibit D.  Letter, Applicant, dated 20 Feb 08.
    Exhibit E.  Letter, AFBCMR, 28 Feb 08 w/atchs.