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AF | BCMR | CY1999 | 9802225
Original file (9802225.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02225
            INDEX CODE: 137.01

            COUNSEL:  None

            HEARING DESIRED: Not indicated


_________________________________________________________________

APPLICANT REQUESTS THAT:

She be entitled to retroactive, present and  future  Survivor  Benefit  Plan
(SBP) benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The deceased member served in the U.S. Air Force for 26 years and they  were
married  for  20  of  those  years.   She  believes  she  is   entitled   to
retroactive, present and future benefits.   She  has  tried,  in  the  past,
numerous time to get the paper work started, but obviously to no avail.

In support of the appeal, the member’s former spouse submits an  Application
for  Annuity,  Survivor  Benefit  Plan  Election  Certificate,  and  Divorce
Decree.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member and applicant were married on 31 May 1966.   The  member
retired on 1 August 1977 and elected spouse and child SBP coverage based  on
full retired pay.  The parties divorced on 12 November 1985 and the  divorce
decree was silent on the SBP.

There is no  record  that  the  member  notified  the  Defense  Finance  and
Accounting Service (DFAS) of the divorce and SBP premiums  continued  to  be
deducted until his death on 26 April 1989.

The applicant (member’s former spouse) remarried on 3 April 1991,  prior  to
her 55th birthday (date of birth: 24 November 1943).

A spouse loses  eligibility  as  a  spouse  beneficiary  following  divorce.
However, the law provides two mechanisms for  changing  spouse  coverage  to
former spouse coverage.  Both  must  be  exercised  within  the  first  year
following divorce: the retiree may file an election change,  or  the  former
spouse may request the retiree be deemed to have made such a change  on  his
or her behalf.  In the latter case, the former  spouse  must  provide  legal
documentation that the member agreed to establish  former  spouse  coverage.
If the divorce decree was granted prior to passage of Public  Law  (PL)  99-
661 (14 Nov 86), or the court is silent on the matter  of  SBP,  the  member
can submit a voluntary election, but there is  no  provision  by  which  the
former spouse can request a deemed election.  If the member does  not  elect
former spouse coverage during the one-year eligibility period, coverage  may
not be established thereafter.  Although SBP premiums  may  continue  to  be
deducted from the member’s retired pay following divorce, the former  spouse
is not eligible to receive annuity payments in the  event  of  the  member’s
death.

Former spouse SBP coverage is  suspended  if  the  former  spouse  remarries
before age 55.  Costs cease effective the first day of the month  after  the
month of remarriage.   However,  eligibility  and  premiums  are  reinstated
effective the first day of the month after  the  date  the  former  spouse’s
remarriage terminates.  If the  member  dies  while  the  former  spouse  is
ineligible, entitlement would be reinstated in the event  the  disqualifying
marriage subsequently ends.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief,  Retiree  Services  Branch,  Directorate  of  Pers  Program  Mgt,
AFPC/DPPTR, reviewed this application and states that  there  is  no  record
that the  retiree  submitted  a  request  for  former  spouse  SBP  coverage
following the divorce.  Although the member continued to  pay  SBP  premiums
from his retired  pay,  the  applicant  did  not  automatically  become  the
beneficiary  following  divorce.   Furthermore,  the  six-year  statute   of
limitations for submitting a claim for payment of an SBP annuity expired  26
April 1995.  There is no evidence of Air Force error, or  basis  in  law  to
award the applicant an annuity; therefore, they  recommend  the  request  be
denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 15 February 1999, for review and response.  As of this date, no  response
has been received by this office.

_________________________________________________________________

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  probable  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 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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 this application in  Executive
Session on 25 May 1999, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Ms. Ann L. Heidig, Member
      Mr. Mike Novel, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 26 Aug 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPTR, dated 3 Feb 99.
      Exhibit D. Letter, AFBCMR, dated 15 Feb 99.





                             BARBARA A. WESTGATE
                             Panel Chair

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