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AF | BCMR | CY2001 | 0101737
Original file (0101737.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01737
                       INDEX CODE:  137.00

      APPLICANT (Deceased)   COUNSEL:  Veterans Service
                                        Center

      SSN        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late-husband’s records be corrected to entitle her to  a  Survivor
Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband submitted a change in beneficiary request in October  2000
and it was not properly documented in all his pertinent records.   The
beneficiary  request  was  forwarded  to  the  Defense   Finance   and
Accounting Service (DFAS) in Cleveland and was not recorded properly.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The service member was married to M. and declined SBP  coverage  prior
to his retirement in 1973.  His pay records  reflect  during  an  open
enrollment (1 Oct 81 - 30 Sep 82), he  elected  spouse  only  coverage
based on a reduced level of retired pay.  The service  member  and  M.
were divorced on 12 Nov 93 and the member was ordered to maintain  the
SBP annuity for M.  On 7 Jan 94, DFAS received a copy of  the  divorce
decree and SBP premiums were  retroactively  suspended.   The  service
member and G. (the applicant) were married on 14 Sep 94; however,  the
service member did not notify DFAS of the change in his martial status
nor did he request to establish coverage  for  his  new  spouse.   The
service member died on 11 Jan 01.  On 21 Feb 01, the service  member's
former spouse (M.) submitted a request for correction of his  military
records to entitle her to an SBP annuity.  The applicant  applied  for
the  SBP  annuity  and  provided  payment  for  the  unpaid   premiums
retroactive to Oct 95.   The  former  spouse's  request  for  the  SBP
annuity was approved 9  May  01,  however,  her  annuity  payment  was
suppressed pending recovery of the cost debt
retroactive to Dec 93.  The applicant  was  refunded  the  monies  she
provided for unpaid premiums on 4 Jun 01.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Retiree  Services  Branch,  AFPC/DPPTR,   reviewed   this
application and states there is no evidence that  the  service  member
attempted to establish SBP coverage for the applicant within the first
year of marriage.  The  designation  beneficiary  form  the  applicant
refers to is the designation form to establish a beneficiary  for  the
service member's unpaid retired pay upon his death.  The law governing
SBP does not provide payment of an annuity  to  both  a  widow  and  a
surviving former spouse.  To approve  the  applicant's  request  would
deny the former spouse a benefit the service member agreed to provide.
 Based on the evidence provided,  DPPPTR  recommends  the  applicant's
request be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to applicant
on 27 Jul 01 for review and response within 30 days.  As of this date,
no response has been received by  this  office.   On  5  Aug  01,  the
applicant submitted a letter stating  that  she  supplied  around  the
clock care for her husband and she needs help to pay his medical bills
(Exhibit D).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

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 the 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.  There
was no evidence submitted to  substantiate  that  the  service  member
attempted to establish SBP coverage on the applicant's  behalf  within
the first year of their  marriage.   The  beneficiary  form  that  the
applicant refers
to was to entitle her to the service member's unpaid retired pay,  not
as a beneficiary to SBP.  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 September 2001, under the provisions of AFI 36-
2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Ms. Patricia D. Vestal, Member
      Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 19 Jun 01, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 20 Jul 01, w/atchs.
      Exhibit C. Letter, SAF/MIBR, dated 27 Jul 01.
      Exhibit D. Applicant's Response, dated 5 Aug 01.




                             DAVID C. VAN GASBECK
                             Panel Chair

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