RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  01-01417
                 INDEX CODE: 137.00

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES

_________________________________________________________________

This application for  correction  of  the  records  of  APPLICANT  was
submitted by (former spouse).


APPLICANT REQUESTS THAT:

She, the former  spouse,  be  named  beneficiary  under  the  Survivor
Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her former husband wanted her to receive the SBP.

In support of her request, the applicant submits  a  personal  letter,
with additional documents associated with  the  issues  cited  in  her
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the letter prepared  by
the appropriate office of the Air Force at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFPC/DPPTR stated that the applicant and member were married on  19
Sep 56 and the member retired on 1 Nov 71.  Pay  records  indicate  he
elected spouse and child coverage based on a reduced level of  retired
pay during the SBP’s initial enrollment period (effective 21 Sep  72).
The parties divorced on 23 Sep 86 and the divorce decree contained the
decedent’s agreement  to  continue  to  pay  SBP  premiums.   However,
neither the member nor his former spouse submitted  a  valid  election
change during the required time limit, but premiums  continued  to  be
deducted from his pay and the applicant’s date of birth  (20  Dec  37)
remained as that of  the  eligible  spouse  beneficiary.   The  member
remarried on 27 Aug 89.  Finance records indicate that, on 10 Apr  91,
the member requested that his wife receive the SBP.  The  member  died
on 13 Apr 91 and his widow is receiving the monthly annuity of $663.

DPPTR stated that the applicant could have requested a deemed election
within the first year following her divorce,  but  failed  to  do  so.
Furthermore, she offers no explanation of her reason  to  delay  (more
than 10 years) in requesting the correction.  The member did  not  try
to establish coverage on the applicant’s behalf, even after a contempt
of court order was issued on 18 Mar 91.   Instead,  he  requested  his
wife receive the SBP two weeks prior to his death.  Both  these  facts
indicate he did not want the applicant to have the SBP.  There  is  no
evidence of an Air Force error or injustice in this  case;  therefore,
DPPTR recommended the request be denied.

HQ AFPC/DPPTR’s evaluation is at Exhibit C.


HQ USAF/JAG provided a legal opinion indicating that the Board  should
grant the requested relief in this and other similar cases only when a
court of competent jurisdiction has decided the matter in favor of the
claimant.  The HQ USAF/JAG evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that, on  6
Mar 91, the former member signed a letter stating that  his  wife  was
not eligible for the SBP and that she, former spouse, was  to  receive
it.  She is unaware of a 10 Apr 91 request that his wife  receive  the
SBP.  If the former member signed  such  a  request,  it  was  on  his
deathbed and he probably did not know what he  was  signing  since  he
died three days later.  As to the timeliness, she has numerous letters
from different individuals she wrote  to  concerning  SBP.   Upon  the
Board’s request, she will provide copies of the correspondence.

Her former spouse tried to get the SBP beneficiary election  corrected
before he died.  She has provided all the proof  the  Board  needs  to
decide her appeal.

The applicant’s complete submission, with attachments, is  at  Exhibit
F.

_________________________________________________________________

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.  The applicant’s divorce
decree of 23 September  1986  clearly  directed  her  deceased  former
spouse to elect former spouse SBP coverage for her.  In  this  regard,
we are constrained to note that the applicable statute (10 USC Section
1450(f)(3)(C)), time limit for request by former spouse, provides that
“An election may not be deemed to have been  made  under  subparagraph
(A) in the case of any person unless the Secretary concerned  receives
a request from the former spouse of the person within one year of  the
date of the court order  or  filing  involved.”   Such  a  requirement
permits a former spouse to circumvent the stipulations  of  a  divorce
decree (as appears to have been done in this  case)  if  the  affected
former spouse does not file a timely request for a deemed election  of
former spouse SBP coverage.  Unfortunately, neither the former  member
nor the applicant took action to notify the appropriate authorities of
the divorce at that  time.   Rather,  it  does  not  appear  that  the
applicant queried DFAS concerning her status until 1991.  On 18  March
1991, less than a month before his death, the former member was  again
ordered by a court to provide the applicant with documents showing  he
had elected former spouse  SBP  coverage  on  her  behalf.   From  the
records provided, it appears that the  former  member  then  contacted
DFAS in late March or early April 1991 and, after being  provided  the
information he sought, requested that his current spouse  receive  the
SBP.  In view of the above and while we are not unsympathetic  to  the
applicant’s situation, in the absence of any evidence which would lead
us to believe that the  applicant  took  any  action  which  could  be
construed as meeting the statutory requirements for a  request  for  a
deemed election for former spouse SBP  coverage,  we  agree  with  the
opinion and  recommendation  of  the  appropriate  office  of  primary
responsibility, HQ AFPC/DPPTR, and adopt their rationale as the  basis
for our conclusion that the applicant  has  failed  to  establish  the
existence of probable error or injustice.  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(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 20 November 2001, under the provisions of AFI 36-
2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Mr. Michael J. Novel, Member
                  Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Apr 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPTR, dated 25 Jul 01.
   Exhibit D.  Letter, HQ USAF/JAG, dated 28 Apr 00.
   Exhibit E.  Letters, SAF/MRBR, dated 3 Aug 01 and AFBCMR,
               dated 28 Aug 01.
   Exhibit F.  Letters from applicant, dated 15 Aug 01, w/atchs,
               and undated [postmarked 24 Sep 01], w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair