RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01372 INDEX CODE:	137.00
COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His records be corrected to reflect he made a timely election for former spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
He and his former spouse were not aware of the need to elect former spouse coverage within one year following their divorce.

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

STATEMENT OF FACTS:
The applicant and his former spouse were married on 30 Oct 82. Prior to his 1 Nov 90 retirement, he elected spouse-only SBP coverage based on a reduced level of retired pay.  The applicant’s divorce was finalized on 25 Dec 96 and the divorce decree ordered him to maintain his former spouse as the beneficiary for SBP. Neither his former spouse nor the applicant submitted an election for former spouse coverage within the first year following their divorce. He remarried on 9 Dec 98. He did not notify the finance center of the change in his marital status or request coverage for his current spouse.

AIR FORCE EVALUATION:
AFPC/DPSIAR states based on guidance issued by the AFBCMR they forwarded this application without a recommendation because it involves two potential SBP beneficiaries.

AFPC/DPSIAR’s complete evaluation is at Exhibit B.
The SAF/MRB Legal Advisor recommends denial. The Legal Advisor states despite the December 1996 court order directing the member to make the election, federal law makes the election unavailable when the deemed election is not timely effected. The applicant’s

ignorance of the legal requirement does not prevent it from having its congressionally intended effect. If there were no competing eligible beneficiary, or there was notarized consent of the current spouse, he would recommend correcting the record, but there is a competing spouse and no consent. He sees no extraordinary circumstances that would support not enforcing the deemed election requirement given the fact correcting the record in this manner will deprive the current spouse of benefits to which she is legally entitled.

The SAF/MRB Legal Advisor’s complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to applicant on 20 Jun 08 for review and response within 30 days. As of this date, no response has been received by this office.

On 4 Aug 08, a complete copy of the Legal Advisor’s evaluation was forwarded to applicant for review and response within 30 days. As of this date, no response has been received by this office.

On 25 Sep 08, the Board staff forwarded the applicant's spouse a letter from the Legal Advisor advising her of the pending action involving SBP benefits. In a letter dated 1 Nov 08, the applicant's current spouse requested that the applicant's former spouse be removed as beneficiary for SBP and requests that she be designated as the SBP beneficiary (Exhibits F & G).

On 11 Dec 08, the Board staff forwarded the applicant a copy of the Legal Advisor's letter and his spouse's response for review and response within 30 days. As of this date, he has not responded (Exhibit H).

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.	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 the recommendation of the SAF/MRB Legal Advisor and adopt his rationale as the basis for our conclusion that the applicant has
1.	
failed to sustain his burden of proof of the existence of an error or an injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

The following members of the Board considered AFBCMR Docket Number BC-2008-01372 in Executive Session on 24 Sep 08 and 6 Feb 09, under the provisions of AFI 36-2603:

, Panel Chair, 
Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 Apr 08, w/atchs. Exhibit B. Letter, HQ AFPC/DPSIAR, dated 27 May 08. Exhibit C. Letter, SAF/MRBR, dated 20 Jun 08.
Exhibit D. Letter, SAF/MRB Legal Advisor, dated 27 Jul 08 Exhibit E. Letter, SAF/MRBC, dated 4 Aug 08, w/atchs.
Exhibit F. Letter, SAF/MRB Legal Advisor, dated 25 Sep 08, w/atch.
Exhibit G. Letter, Applicant's Spouse, dated 1 Nov 08. Exhibit H. Letter, SAF/MRBC, dated 11 Dec 08, w/atchs.

Panel Chair