RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-03286
		INDEX CODE:  137.01
		COUNSEL:  NONE
		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her former husband's records be corrected to reflect that he elected former spouse coverage under the Survivor Benefits Program (SBP).

2.  Her two children be added as beneficiaries to the SBP.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her spouse was supposed to file the appropriate paperwork as directed by the divorce decree.  

In support of her request, the applicant provided a copy of her divorce decree and a copy of a stipulation agreement.

Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is the former spouse of a retired colonel (0-6).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIAR forwarded the request without recommendation due to there being two potential SBP beneficiaries.  DPSIAR states that the member’s widow became the eligible spouse beneficiary on the first anniversary of their marriage (15 March 2007), and the applicant's youngest child became an ineligible beneficiary in September 1999.

The complete DPSIAR evaluation is at Exhibit B.

The BCMR Legal Advisor recommends denial.  The Legal Advisor states that although the applicant was directed by the 1998 divorce decree to continue coverage on the former spouse; federal law does not provide provisions for elections that are not made in a timely manner.  A USAF/JAA legal opinion provided an analysis which advises the Board not to consider such cases; the applicant should be directed to the civil court system.  SAF/GCM’s opinion explains that in extraordinary circumstances, it is within the Board’s authority to correct the record if it finds it necessary to prevent and error or injustice.  

The Legal Advisor states that if there were not a competing eligible beneficiary, he would recommend correcting the record; however, the current spouse is the eligible beneficiary.  

The BCMR Legal Advisory, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She responded to correct an error in the Legal Advisory which states that the spouse is deceased; however, the spouse is not deceased and never filed the divorce decree with the Air Force as directed by the Court.

Her complete submission, with attachments, is at Exhibit E.

_________________________________________________________________

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.  The applicant's complete submission was thoroughly reviewed and her contentions were duly noted.  However, we do not find the applicant's assertions and the documentation presented in support of her appeal sufficiently persuasive to override the rationale provided by the BCMR Legal Advisor.  In this respect, we took note of the divorce decree that ordered the former service member to provide SBP coverage for the applicant.  However, we also note that federal law makes the election unavailable when the deemed election is not timely effected, and no evidence has been presented which shows a deemed election was made within the one-year time period mandated by law.  We are aware that in extraordinary circumstances, it is within the authority of the Board to correct a record if it finds it necessary to prevent an error or injustice.  However, in this case, we agree with the Legal Advisor that there are no extraordinary circumstances here that support not enforcing the deemed election requirements given the fact that a correction of the record in the manner requested would deprive the former member’s current spouse of the benefits she is currently entitled to.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the Legal Advisor and adopt his rationale as the basis for our decision the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice.  Accordingly, 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-2008-03286 in Executive Session on 6 January 2009, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 September 2008, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIAR, dated 6 October 2008.
    Exhibit C.  Letter, BCMR Legal Advisor, dated 22 October 2008,  
                w/atchs.
    Exhibit D.  Letter, AFBCMR, dated 23 October 2008.
    Exhibit E.  Letter, Applicant, dated 1 November 2008, w/atchs.
	Exhibit F.  Letter, BCMR Legal Advisor, dated 24 Novemeber 2008.
    Exhibit G.  Letter, AFBCMR, dated 2 December 2008, w/atch.

                                   XXXXXXXXXX
                                   Chair