RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-01458 INDEX CODE:	137.01
COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
Her ex-husband’s records be corrected to show he elected “former spouse” coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
Coverage was not changed to former spouse when their divorce was completed.

In support of her request, the applicant provided a copy of the decedent’s death certificate, their divorce decree, their marriage certificate, and marriage license.

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

STATEMENT OF FACTS:
The decedent and applicant were married on 3 Feb 58 and he elected spouse and child SBP coverage based on full retired pay prior to his 1 Sep 77 retirement.

The parties divorced on 17 Sep 86 and the divorce decree was silent on the SBP. The Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent married again on 27 Oct
86 and divorced on 9 Oct 03. The decedent did not request that DFAS - Cleveland (DFAS-CL) establish SBP coverage on either party’s behalf.

Records further indicate the decedent married a third time on
22 Mar 04 and did not establish SBP coverage on this wife as well.

The decedent’s retired pay records erroneously reflect the applicant’s name and date of birth as the eligible spouse beneficiary. In addition, SBP premiums were deducted from his retired pay until his 1 Apr 08 death. His widow is eligible to receive an SBP annuity of $745, but she has not applied for the benefit.

AIR FORCE EVALUATION:
AFPC/DPSIAR defers to the Board as the application involves two potential SBP beneficiaries.

The complete AFPC/DPSIAR evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 20 Jun 08 for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response.

SAF/MRB LEGAL ADVISOR EVALUATION:
The SAF/MRB Legal Advisor recommends denial. He states that in accordance with Federal law, the member’s current widow is the eligible beneficiary unless there has been a legally effective election or deemed election (pursuant to a court order). In addition, HQ USAF/JAA’s legal opinion dated 19 Oct 06, sets forth the applicable statutory legal analysis and case law on the need to make a timely deemed election. It advises the AFBCMR not to consider such cases and direct such applicants to the civil court system. The SAF/MRB Legal Advisor further states that if the Board is inclined to grant the remedy, it should not reach a final decision until the view of the current spouse is solicited and considered.

The complete SAF/MRB Legal Advisor evaluation, with attachments, is at Exhibit D.

APPLICANT’S REVIEW OF SAF/MRB LEGAL ADVISOR EVALUATION:
A copy of the SAF/MRB Legal Advisor evaluation, with attachments, was forwarded to the applicant on 15 Aug 08 for review and comment within 30 days (Exhibit E). As of this date, this office has not received a response.

THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
1.	
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 opinions and recommendations of the SAF/MRB Legal Advisor and the HQ USAF/JAA opinion dated
19 Oct 06 and adopt the rationales expressed 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. Although the AFBMCR has the authority, it should not rule on a dispute between two claimants to a benefit that only one of them can receive. Furthermore, it is not appropriate for the Board to adjudicate such a dispute since that task is more properly left to the courts. However, if the legal beneficiary submits a notarized statement relinquishing her entitlement to the SBP, the Board may be willing to reconsider the applicant’s appeal in consideration of this evidence. In view of the foregoing, 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 Docket Number BC- 2008-01458 in Executive Session on 8 October 2008, under the provisions of AFI 36-2603:

, Panel Chair, 
Member, 
Member

The following documentary evidence was considered:
Exhibit A. DD Form 149, w/atchs, dated 9 Apr 08. Exhibit B. Memorandum, AFPC/DPSIAR, dated 10 Jun 08. Exhibit C. Letter, SAF/MRBR, dated 22 Apr 08.
Exhibit D. Memorandum, SAF/MRB Legal Advisor, dated 14 Jul 08. Exhibit E. Letter, AFBCMR, w/atchs, dated 15 Aug 08.

Panel Chair