RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02336
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her former husband’s records be corrected to show that she is entitled to a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

There was tampering of the divorce papers; the initials on the corners are not hers, and page 3 of the divorce papers “USAF Retirement Rights to Husband” was inserted after she signed.

In support of the appeal, applicant submits a copy of the Death Certificate, a copy of the divorce papers, a copy of the marriage certificate, a copy of a letter from the Bar Association, a copy of a letter from the Superior Court of Guam; a copy of the final decree, a copy of an order from Superior Court of Guam for half of the retirement pay.

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

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STATEMENT OF FACTS:

The deceased member and the applicant were married on 16 January 1965, they divorced on 16 December 1985, and the divorce decree did not refer to the SBP.  The former member and R--- (his second wife) were married on 16 November 1988 and he elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 August 1990 retirement.  The youngest child lost eligibility effective June 1996.  The former member died on 4 March 2004 and SBP annuity payments of $238 monthly were established on his widow’s behalf.  Subsequently, the Department of Veterans Affairs (VA) awarded her Dependency and Indemnity Compensation (DIC) payments.  SBP payments terminated because DIC payments are greater than $238.

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AIR FORCE EVALUATION:

AFPC/DPPTR states the former member could have elected former spouse coverage voluntarily upon his retirement, but failed to do so.  Instead, he elected SBP spouse coverage for his (new) wife.  Even though the applicant (former spouse) claims her divorce decree was tampered with by removing the survivor benefits from the divorce papers, she had the opportunity to readdress the SBP issue during the 27 July 1998 hearing held at the Superior Court of Guam.  However, the order she provided only referred to the division of the former member’s military retirement pension.  Under the Uniformed Services Former Spouses’ Protection Action, the former spouse’s right to payments based on a division of retired pay terminated upon the death of the former member.  Therefore, they recommend denial of the former spouse’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 August 2004, a copy of the Air Force evaluation was forwarded to the former spouse for review and response within 30 days.  As of this date, no response has been received by this office.

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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 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 recommendation of the Air Force and adopt their rationale as the basis for the 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 in this application.

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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.

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The following members of the Board considered this application in Executive Session on 2 December 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 20 Jul 04, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPPTR, undated.
	Exhibit D.	Letter, SAF/MRBR, dated 27 Aug 04.