RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-03235 INDEX CODE:	137.00
COUNSEL:	NONE
HEARING DESIRED:	NOT INDICATED

APPLICANT REQUESTS THAT:
Her deceased spouse’s record be changed to show he elected child- only coverage under the Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:
Her former spouse elected spouse-only coverage under the SBP, but she has since remarried and feels that their son is entitled to the SBP. Her former spouse has paid into the SBP since 1995.

In support of her request, the applicant provided a copy of her divorce decree, marriage certificates, a birth certificate, a death certificate, a leave and earnings statement, a DD Form 214, Certificate of Release or Discharge from Active Duty, and a DD Form 2656, Data for Payment of Retired Personnel.

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

STATEMENT OF FACTS:
The decedent and the applicant married on 23 April 1983. He elected spouse-only SBP coverage based on a reduced level of retired pay prior to his 1 July 1995 retirement.

The decedent and the applicant divorced on 29 July 2003. The applicant remarried on 10 February 2006.
The decedent died on 21 May 2008.

AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial.	DPSIAR states the decedent and the applicant had two eligible children, but he elected spouse-

only	coverage	and	the	applicant	concurred	in	his	election.	
Another	child	was	born	after	he	retired,	but	since	he	had	
originally excluded the two older children, he could not provide SBP coverage for that child or the older children. There is no evidence he submitted an election to add their children to the SBP during the opportunities provided by the 1999 - 2000 or the 2005 - 2006 open enrollments. When they divorced, the divorce decree was silent on the SBP, and he did not voluntarily submit a valid election for former-spouse coverage within the first year as required by law. Nevertheless, the applicant lost her eligibility as a spouse beneficiary on the date of divorce. The decedent failed to properly notify DFAS-CL of his change in marital status, and his SBP data continued to erroneously report the applicant's name and date of birth () as if she were his spouse. Spouse SBP premiums were deducted from his pay until his 21 May 2008 death.

The decedent had the option to elect spouse and child coverage at the time of his retirement, but he did not. Had he elected to protect both his wife and children, the child born after retirement would have automatically been eligible as another contingent beneficiary on the date of his birth () with no additional cost for his coverage. Although he did not  remarry  before  his  death,  the  applicant  remarried  on
10 February 2006, before attaining age 55, disqualifying her potential eligibility as a former-spouse beneficiary. There is neither evidence of Air Force error or injustice in this case, nor any basis in law to approve this request.

The complete DPSIAR evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 November 2008, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C). As of this date, this office has received no response.

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	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. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of an error or 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.

The following members of the Board considered AFBCMR Docket Number BC-2008-03235 in Executive Session on 15 January 2009, under the provisions of AFI 36-2603:

, Panel Chair 
, Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 25 August 2008, w/atchs. Exhibit B.	Letter, AFPC/DPSIAR, dated 6 October 2008 Exhibit C.	Letter, SAF/MRBR, dated 7 November 2008.