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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03000 K B  1 2  1999 
COUNSEL:  None 

HEARING DESIRED: Not indicated 

APPLICANT REQUESTS THAT: 

His  records  be  corrected  to  show  that  he  did  not  exercise  a 
Survivor Benefit Plan (SBP) option and that he be reimbursed all 
premiums deducted from his retirement pay since 1 August 1996. 

APPLICANT CONTENDS THAT: 

In the two years from the time his wife  left, he  has  not  been 
able  to  contact  her.  He  understands  the  concept  of  the  SBP 
program.  However, his request for correction of military records 
seems to be the only way to obtain equitable treatment.  He did 
not ask his wife to leave or did he initiate the divorce.  He did 
spend two years following up and finally succeeded in obtaining 
the divorce.  All the while having the premium deducted from his 
retirement pay.  He believes the  injustice can be  corrected by 
updating  his  records  to  reflect  that  he  never  initiated  the 
program and reimbursing him for premiums deducted since 1 August 
1996. 
Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The applicant was separated from his spouse effective July 1995, 
however, he  was  legally  married  when  he  retired  from  the  Air 
Force  on  1 August  1996. 
He  did  not  complete  the  documents 
required  to  correctly  establish  his  retired  pay  account; 
consequently,  the  Defense  Finance  and  Accounting  Service  - 
Cleveland  Center  (DFAS-CL) established  full  spouse  and  child 
coverage to comply with the law. 
On 26  September 1997,  the applicant divorced and he  submitted a 
copy of  the divorce decree to DFAS-CL, and  spouse premiums and 
coverage  have  been  suspended.  Upon  remarriage, the  applicant 
will  have  the  option  to  extend  or  decline  coverage  for a  new 
spouse. 

97- 03000 

AIR FORCE EVALUATION: 
The Chief ,  Retiree Services Branch, Directorate of Pers Program 
Management, AFPC/DPPTR, reviewed this application and states that 
when a member fails to make an SBP election prior to retirement 
or fails to obtain a valid spouse concurrence in an election that 
does  not  provide  maximum  spouse  coverage,  full  coverage  is 
established by operation of law.  However, the law also provides 
that  the  Secretary  of  the  Air  Force  (SAF)  may  waive  the 
requirement  to  obtain  a  spouse's written  concurrence  if  the 
member  establishes, to  the  satisfaction of  the  SAF, that  the 
spouse's whereabouts  cannot  be  determined.  The  request  for 
waiver must be accompanied by proper documentation (Le., missing 
persons  report,  all  efforts  to  locate  spouse,  notarized 
affidavits, etc.) .  A legal separation, pending divorce, martial 
discord, or the member's disinterest in locating a spouse are not 
considered  justifications to  request  a  waiver.  The  applicant 
acknowledges  that  during  his  2  April  1996  SBP  briefing  at 
Fairchild AFB, WA, he was informed that if his wife's concurrence 
was  not  obtained  prior  to  the  date  of  his  retirement,  full 
coverage would be established.  The member had almost four months 
after  that  briefing  to  obtain  his  wife's  concurrence  or  to 
request a waiver of  the requirement.  Approval of  this request 
would  provide  the  applicant  an  opportunity  not  afforded  other 
retirees and is not justified.  There is no evidence of error or 
injustice on the part of the Air Force in this case; therefore, 
they recommend denial of applicant's request. 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
On 9 March 1998, a copy of the Air Force evaluation was forwarded 
to the applicant for review and response within 30 days.  As of 
this date, no response has been received by this office. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Chief, General  Law  Division, Office  of  the  Judge Advocate 
General, ,  AFPC/DPPTR, reviewed this application and states that 
they do not agree that the applicant's petition supports relief. 
On  the  contrary,  his  retirement  pay  has  been  handled  in 
accordance  with  the  requirements  established  in  10  U.S.C. 
1448(a) (3) (A) and AFI 36-3006, Survivor Benefit Plan  (SBP) , para 
2.2.  In fact, paragraph A2.8.1. of AFI  36-3006 provides that a 
waiver of spouse concurrence may not be based solely on martial 
discord,  the  fact  that  the  member  and  spouse  are  legally 
separated, or  the  fact  that  the  member  is  not  interested  in 
locating the spouse.  Therefore, any claim for reimbursement for 
premiums  already  paid  is  not  legally  supportable  because  the 

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97-03000 

premiums  already  paid  is  not  legally  supportable  because  the 
actions taken in the applicant's  case were completely consistent 
with  the  applicable statute  and  regulation.  The only question 
presented is whether the board should now allow the applicant to 
prove that under 10 U.S.C.  1448(a) ( 3 )  ( C )  I  he should be allowed to 
prove his wife's  whereabouts still cannot be  determined or that 
exceptional circumstances justify termination of  the wife's  SBP 
coverage- 
They  believe  that  if  the  applicant  proves  to  the 
Board's  satisfaction that  one  of  these exigencies exists, then 
the  Board  may  act  on  the  Secretary's  behalf  to  terminate  any 
further SBP coverage for the  applicant's  former  spouse without 
the spouse's concurrence,  The only supporting evidence reviewed 
by  this office  is a copy of  the divorce documents filed by  his 
attorneys in September 1997 and an affidavit by a paralegal which 
indicates that his attorneys had difficulty serving the documents 
on his wife's  attorney.  That is less than convincing evidence, 
One need only consider some of the practical steps the applicant 
could have taken over the past  four years if he truly wanted to 
locate his wife.  For example, there are no statements from his 
wife's  family members or friends that the wife's  whereabouts are 
unknown and no indication that he asked his attorneys to help him 
Note  that  there  is  no  mention  of  the 
locate  his  wife. 
applicant's  missing wife in his divorce documents: did the court 
realize  that  they  were  conducting  the  proceeding  with  the 
petitioner  in  absentia?  There  is  no  indication the  applicant 
personally visited San Antonio nor any other location where his 
In  short,  the  lack  of  any 
wife  might  have  relocated. 
substantiation strong supports the impression that the applicant 
made only a token effort to find his wife and, not surprisingly, 
was  unsuccessful. 
They,  therefore,  recommend  that  the 
application be denied and only reconsidered upon the applicant's 
submission of  convincing proof  that  his  former wife  cannot be 
located for purposes of making a SBP election.  Only then should 
the  Board  consider  waiving  the  wife's  statutory  protection. 
Further, any relief should only be applied to retired pay earned 
subsequent to the Board's decision. 

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

The applicant reviewed the Air Force evaluation and states that 
while  he  was  never  able  to .  speak  with  his  ex-wife,  he  did 
discover that her father was providing her with the funds to file 
for divorce.  He learned this when he was served with notice that 
she had  filed for divorce.  Several months  later, her attorney 
dropped the case.  The reason was the attorney was unable to find 
his ex-wife and she never returned any paperwork.  To this date, 
he  still  has  not  been  able  to  contact  her  and  her  family 
continues  to  deny  knowledge  of  her  whereabouts.  His  ex-wife 
chose to abandon the marriage just prior to his retirement.  She 
indicated  her  desires  to  end  the  marriage  when  she  had  him 

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served.  His  ex-wife's  statutory protection  has  carried  forth 
despite  her  actions  in  abandoning  the  marriage  and  her 
indications  of  intent  to  end  the  marriage. 
Without  the 
assistance  of  her  family  or  the  employment  of  a  private 
investigator he is and has been unable to determine her location. 

Applicant's complete response is attached at Exhibit G. 

THE BOARD CO NCLUDES THAT: 

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

2.  The application was timely filed. 
3 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
thoroughly reviewing all  the  documentation submitted  with  this 
appeal, the Board believes that due to the applicant's  situation 
of being separated and unable to locate his ex-spouse after what 
appears to be many attempts through her family, his record should 
be corrected to show he declined SBP coverage.  In this respect, 
we  note  the  Declaration  of  L---  G--- ,  Maryann  &  Moreno 
Associates,  submitted  by  the  applicant,  indicating  their 
unsuccessful attempts in contacting the applicant's  spouse.  In 
view of  the foregoing, we  recommend his records be  corrected to 
the extent indicated below. 

THE BOARD RECOMMENDS THAT : 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that the Secretary of 
the Air Force determined that he could not locate his spouse, and 
on 31 July 1996, pursuant to 10 U.S.C. , Section 1448(a) ( 3 )  (C) , he 
elected to decline Survivor Benefit Plan coverage. 

The following members of the Board considered this application in 
Executive Session on 7 July 1998 and 27 October 1998, under the 
provisions of AFI 36-2603: 

Mrs. Barbara A. Westgate, Panel Chair 
Mr. Frederick R. Beaman, 111, Member 
Mr. Steven A. Shaw, Member 

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All members voted  to correct the records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A.  DD Form 149,  dated 6 Oct 97,  w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPPTR, dated 20 Feb 98 
Exhibit D.  Letter, AFBCMR, dated 9  Mar 98. 
Exhibit E.  Letter, AF/JAG, dated 24 Aug 98. 
Exhibit F.  Letter, AFBCMR, dated 9  Sept 98. 
Exhibit G.  Applicant's Response, undated. 

Panel Chair 

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AFBCMR 97-03000 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 

of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

records of the Department of the Air Force relating to 
rrected to show that the Secretary of the Air Force d 
e, and on 31 July 1996, pursuant to 10 U.S.C.,  Section 

1448(a)(3)(C), he elected to decline Survivor Benefit Plan coverage. 

Director 
Air Force Review Boards Agency