RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2005-00415
								INDEX CODE:  137.04

								COUNSEL:  NONE

								HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  8 AUGUST 2006

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APPLICANT REQUESTS THAT:

Her deceased former spouse’s records be corrected to show that he elected coverage for her under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

She was never sent her portion of her ex-spouse’s retired pay.  She is requesting 30% of her ex-spouse’s retired pay as directed in their divorce decree.  The payments should have been sent.  She requests survival benefits.  She and her former spouse were married for 23 years.  She was not aware of her rights.

In support of her request, applicant provided copies of letters from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) pertaining to her request for former spouse payments under the Uniformed Services Former Spouse’s Protection Act, their Marriage License and Decree of Divorce, a Death Certificate, and a copy of DD Form 2656, Data for Payment of Retired Personnel.

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

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STATEMENT OF FACTS:

The applicant and the member were married on 14 Jul 56.  The parties divorced on 19 Jan 79; the divorce decree was silent on the SBP.

The Air Force stated the member was a member of the Air National Guard.  Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent remarried on 30 Jul 81, but that wife’s eligibility under DEERS expired on 31 May 85.  The member declined Reserve Component SBP (RCSBP) effective 9 Feb 86 when he became eligible to receive retired pay.  

On 2 Jul 98, the former member executed DD Form 2656 electing child only coverage based on full retired pay.  He was not married at the time.  The member remarried on 20 Mar 01 and the parties divorced on 4 Jun 03.  The decedent’s son (date of birth 29 Nov 88) is currently receiving a monthly annuity of $1,414.

The former member’s date of birth is 8 Dec 38.  He died on 22 Dec 04.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial, stating there is no evidence of error or injustice in this case.  The applicant’s claims are without merit.  A court ordered division of retired pay is not considered and should not be interpreted as pertaining to the SBP.  The applicant’s alleged attempts to establish payment of the alimony authorized by her divorce decree may have required further civil action, not Air Force intervention.  SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage.  Even though the law in effect at the time of the applicant’s divorce did not allow retired members to provide former spouse SBP coverage, the member could have voluntarily elected former spouse SBP coverage on the applicant’s behalf when he applied for commencement of his retired pay, but he did not.

Records verify that the 1 Mar 99 – 29 Feb 00 open enrollment packet was mailed to the correspondence address the member had provided to DFAS-CL, the address where he resided until his death, but there is no evidence he returned an election on the applicant’s behalf.  In the event he had submitted an election for former spouse coverage, the laws controlling the SBP would have required the child’s coverage to terminate.  Elections for former spouse coverage may include as contingent beneficiaries only the children resulting from the marriage of the member and the former spouse.

Public Law (PL) 99-145 (8 Nov 85, but effective 1 Mar 86) permits retiring members to elect SBP coverage for a former spouse with the same cost and coverage options as spouse coverage.  A member, who has an eligible former spouse at the time of retirement, and does not elect SBP former spouse coverage, may not later elect that option unless Congress authorizes an open enrollment.  

The complete Air Force evaluation is at Exhibit B.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submits additional comments concerning her marriage to the former service member and her life subsequent to their divorce in 1979.  

Her complete response is at Exhibit D.

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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 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 in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered.

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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 Docket Number BC‑2005-00415 in Executive Session on 7 July 2005, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Jan 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 18 Apr 05.
    Exhibit C.  Letter, SAF/MRBR, dated 22 Apr 05.
    Exhibit D.  Letter, Applicant, dated 27 Apr 05.

                                   
                                   Panel Chair