RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03579
		INDEX CODE:  137.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased husband’s record be corrected to show the Air Force Board for Correction for Military Records (AFBCMR) did not award Survivor Benefit Plan (SBP) coverage to his former spouse.

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APPLICANT CONTENDS THAT:

Her husband’s former spouse should have known she was supposed to file a deemed election.  The AFBCMR based its decision on a deemed election form and divorce decree from 21 years ago.  Military pay is not property to be divided, but it was.  She became disabled seven years ago.  Half of her husband’s military retirement and his social security are lost.  She collected SBP for nearly two years.  Her husband wanted to be sure she was taken care of and the AFBCMR decided on her life without her involvement.

In support of her request, the applicant provided a personal statement, a copy of a death certificate, a divorce decree, and letters from the Defense Finance and Accounting Service Center (DFAS).

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

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STATEMENT OF FACTS:

The former service member elected spouse-only SBP coverage based on a reduced level of retired pay prior to his 1 July 1977 retirement.  He increased his level of coverage to full retired pay during the open enrollment period authorized by Public Law (PL) 97-35 (1 October 1981 – 30 September 1982).  He and his former spouse divorced on 21 May 1986 and in the divorce decree, he was given the option of maintaining SBP or acquiring life insurance on his former spouse’s behalf.  However, neither party submitted a valid SBP election change during the required time limit.  He married the applicant on 7 July 1988, but did not establish SBP coverage on her behalf.

In 2006, the AFBCMR corrected his records to show that on 22 May 1986, he elected former spouse coverage based on full retired pay.  Prior to making this correction, the AFBCMR received a notarized statement, dated 24 February 2006, in which applicant admitted she was aware he was required to carry SBP for the former spouse and that she did not intend to make a claim for the SBP.  On 16 October 2007, The Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) established SBP on the former spouse’s behalf.

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AIR FORCE EVALUATION:

AFPC/DPSIAR recommends denial.  DPSIAR states notwithstanding the applicant’s claim that the AFBCMR acted without her involvement, the record contains her statement, voluntarily waiving her entitlement to SBP.  There is no evidence of error or injustice in this case and no basis in law to grant relief.

DPSIAR’s complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the evaluation and states that she was not included in the decision regarding SBP benefits.  When she submitted a statement indicating she was not going to apply for benefits – this statement should not have been included in the decision process.  She has collected SBP benefits in good faith for two years.  The Air Force knowing she was the correct spouse to receive the benefits allowed the former spouse to turn back time and fill out a deemed election form.

Applicant’s complete response, with attachment, is at Exhibit D.

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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.  The applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the 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.  Contrary to her assertion, the applicant signed a notarized statement voluntarily waiving her entitlement to the SBP.  Accordingly we do not believe that the corrections previously directed by the Board were in error or constitute an injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and 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-2007-03579 in Executive Session on 14 February 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 November 2007, w/atchs.
   Exhibit B.  Letter, AFPC/DPSIAR, dated 6 December 2007.
   Exhibit C.  Letter, SAF/MRBR, dated 14 December 2007.
   Exhibit D.  Letter, Applicant, undated, w/atch.