ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                            DOCKET NUMBER:  96-01020


                                              COUNSEL:  NONE

                                              HEARING DESIRED:  NOT

INDICATED
___________________________________________________________________


RESUME OF CASE:


In an application dated 3 April 1996, the applicant requested  that  she,
the former spouse, be named beneficiary under the Survivor  Benefit  Plan
(SBP).

On 11 June 1997, the Board considered and denied  the  application.   The
applicant was advised that there is no evidence that a properly  executed
request was submitted to the appropriate  office  by  either  the  former
service member or the applicant requesting that former spouse coverage be
established in the applicant’s behalf.  A complete copy of the Record  of
Proceedings is attached at Exhibit E.

The applicant filed an action in  the  United  States  Court  of  Federal
Claims appealing the Board’s decision to deny her claim that she  is  the
proper beneficiary to her former husband’s SBP.  On 15 May 2001, an order
was issued in the case  remanding  the  matter  back  to  the  AFBCMR  to
reconsider its decision.  The Court directed  the  Board  to  review  the
existing administrative record and other relevant materials not  included
in the record and set forth the factual and legal basis for  the  Board’s
previous decision.  The Court was particularly concerned that  the  Board
disregarded evidence in the case.  The court order is at Exhibit F.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Office of the Judge Advocate General, HQ USAF/JAG,  recommended  that
the Board consider the additional evidence and reconsider  its  decision.
If the Board concludes that its original decision was correct, it  should
explain its rationale in greater  detail  and  specifically  address  the
court’s concern that the Board disregarded evidence.

In HQ USAF/JAG’s opinion,  there  is  evidence  to  support  the  Board’s
conclusion that a timely request for a deemed election of  former  spouse
SBP coverage was never received from the applicant.  The applicant claims
she submitted a request for  a  deemed  election  of  former  spouse  SBP
coverage by certified mail on 27 July 1992.  Following the former service
member’s death on 11 January 1996, she mailed a photocopy of the  alleged
written request (dated 25 July 1992) to DFAS on 11 March 1996, along with
her request for payment of the SBP annuity.  DFAS concedes that  had  the
document been received within one year of the date of the amended  decree
(prior to 22 June 1993), as required  by  statute,  it  would  have  been
sufficient to meet the statutory requirements as a request for  a  deemed
election of former spouse SBP coverage. The  applicant  received  neither
Uniformed  Services  Former  Spouses’  Protection  Act  (USFSPA)   direct
payments nor SBP annuity payments.

HQ USAF/JAG goes on to state that  this  evidence  supports  the  Board’s
conclusion that the applicant  never  filed  a  proper  request  for  SBP
benefits.  The 27 July 1992 certified mail from the  applicant,  received
by DFAS-DE/DG on 31  July  1992,  dealt  solely  with  the  $300  Support
payment.  That mailing contained only a single note  from  the  applicant
and a copy of the original divorce decree.  The note only  addressed  the
$300 support payment, not the SBP.  Neither the  note  nor  the  original
divorce decree made  any  mention  of  SBP  coverage.   Until  DFAS-DE/DG
received the amended divorce decree in February 1993, the focus  of  both
the applicant and DFAS’ communications was exclusively the  $300  support
payment issue.  DFAS-DE/DG did not  receive  the  amended  decree,  which
directed the former service member to elect former  spouse  SBP  coverage
for  the  applicant,  until  23  February  1993.   That  was  the   first
communication concerning SBP benefits.  Because of the sequence of events
and the contents of conversations and written  communications  from  June
1992 through June 1993, the 25 July 1992 date of the allegedly “retained”
photocopy appears  unusual.   A  more  realistic  date  for  the  alleged
correspondence would be  in  the  February  1993  time  frame,  when  the
addendum to the divorce decree was mailed to DFAS.  The argument that the
allegedly “retained” document was part of the certified  mailing,  rather
than part of the only  mailing  that  addressed  SBP  issues,  makes  the
alleged date, and therefore the document itself, all the more incredible.


Finally, the allegedly “retained” document states, “the other document is
an amendment to  Mr.  ----------’s  Survivor’s  Benefit  Plan.”   If  the
applicant’s  intent  was  to  replace  “lost”  documents  that  she   had
previously sent by certified mail, it would seem that she would have sent
the replacements by certified mail to ensure a record  of  receipt,  that
both “lost” documents would have been referenced in the  note,  and  that
the telephone conversations  she  had  with  DFAS  employees  would  have
referenced the “lost” documents.  In HQ USAF/JAG’s opinion, the July 1992
and  February  1993  mailings  are  consistent  when  viewed   from   the
perspective of the contents of DFAS records and the recollections of DFAS
employees; they are inconsistent if viewed  in  light  of  the  allegedly
“retained” document.

There is no dispute as to the law or its requirements in this  case.   10
USC 1450 (f)(3)(C) 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.
 The Comptroller General has repeatedly held that a deemed  election  for
former spouse SBP coverage must be requested in writing within  one  year
of the date that the court ordered the member to make a former spouse SBP
coverage election.  A court order amending the  original  divorce  decree
may be the basis of a deemed election.

A complete copy of the Air Force evaluation is attached at Exhibit G.
___________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant questions why payments for the SBP  were  stopped  in  June
1992; who gave DFAS the authority to stop  deducting  payments  from  her
former spouse’s retired pay; and why she was not notified concerning  the
matter.  She also asks why DFAS failed to ask her former spouse if he had
the court order naming her as beneficiary overturned, when he scribbled a
note requesting that his current wife be made  beneficiary.   She  states
she was never told by DFAS that she needed to fill out an application for
benefits under the SBP.  Her complete response, with  attachment,  is  at
Exhibit I.
___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  In earlier findings, the Board determined that there was insufficient
evidence of an error or an injustice to  warrant  any  corrective  action
regarding the applicant’s appeal.  After reviewing  the  evidence,  which
included the documents available for the  Board’s  review,  it  concluded
that there was no evidence to indicate that the former servicemember ever
attempted to establish former spouse coverage in the applicant’s  behalf.
Nor was the Board persuaded that a properly  executed  request  was  ever
submitted to the appropriate office by either the former servicemember or
the applicant requesting former spouse coverage  be  established  in  her
behalf.

2.  Pursuant to the remand order of the United States  Federal  Court  of
Claims, we have reconsidered the documentation in the  applicant’s  case,
including a more in-depth advisory opinion from the  Chief,  General  Law
Division, Office of the Judge Advocate General.   Unfortunately  for  the
applicant, however, we again find insufficient  evidence  of  a  probable
error or an injustice warranting favorable action on her  request  for  a
correction of records to show that she is her  deceased  former  spouse's
beneficiary under the  Survivor  Benefit  Plan  (SBP).   The  applicant’s
amended divorce decree of June 22, 1992, clearly  directed  her  deceased
former spouse to elect former spouse SBP coverage for her.  It is equally
clear,  however,  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.  Herein lies the applicant’s dilemma.  The letter she claims to
have submitted by certified mail to DFAS on July  27,  1992,  would  have
indeed been sufficient to meet the statutory requirements  as  a  request
for a deemed election  of  former  spouse  SBP  coverage.   However,  the
greater weight of the evidence available shows that  the  certified  mail
from the applicant, received by DFAS on July 31, 1992, dealt solely  with
a $300.00 support payment the applicant had been awarded in her  original
divorce decree and wanted to have deducted  directly  from  her  deceased
former spouse’s retirement  pay.   Neither  the  note  included  in  that
mailing nor the original divorce decree mentioned SBP coverage.  Although
SBP coverage was presumably suspended at  the  request  of  the  deceased
former spouse effective June 1992, there is no indication that  DFAS  was
aware of the amended divorce decree at the time.  Moreover, as  noted  by
the AFPC advisory opinion, absent an  election  by  the  deceased  former
spouse or a “deemed election” by the applicant, DFAS lacked authority  to
change his election to former spouse coverage even if it had  been  aware
of the amended divorce decree.  In view of the foregoing, we do not  find
the applicant’s claim that she submitted a request for a deemed  election
of former spouse SBP coverage by certified mail on July 27, 1992, to DFAS
sufficiently compelling to override the analysis provided by  the  Chief,
General Law Division,  Office  of  The  Judge  Advocate,  HQ  USAF.   We,
therefore, confirm our previous decision that the applicant has failed to
establish that she filed a proper request for  SBP  benefits  within  the
time limits established by applicable law.

3.  Since we have the authority  to  grant  relief  based  on  injustice,
however, the absence of an error is not necessarily  dispositive  of  the
applicant’s case.  In this regard, we note that, on June  22,  1992,  the
applicant received an amendment to her divorce decree which required  her
deceased former spouse to keep her as his SBP beneficiary.  By  operation
of law, the former servicemember had one year from this  date  (June  21,
1993) to file an election change to  establish  former  spouse  coverage.
The applicant could also have established the former spouse SBP  coverage
for herself provided she submitted a copy of the divorce decree  to  DFAS
and requested a deemed election  in  her  behalf  within  the  same  time
period.  In February 1993, the applicant mailed to DFAS  a  copy  of  her
deceased former spouse’s retirement orders and the June 1992 amendment to
their divorce decree.  With the  amended  decree,  applicant  included  a
handwritten note that said she was requesting that DFAS file  this  legal
document along with the divorce papers they had on file with their social
security numbers and names.  The copies of the amended divorce decree and
applicant’s note were received by DFAS on February 23, 1993.  She did not
indicate that she was making a deemed election under the SBP, nor did she
mention her previous request  for  a  direct  deduction  of  the  $300.00
monthly support payment from her deceased former spouse’s retirement pay.
 On March 23, 1993, the applicant telephoned DFAS requesting  the  status
of her SBP coverage.  There  is  no  indication  in  DFAS  files  of  the
specific conversation that took place, but the claims  examiner  assigned
to applicant’s case recalls telling applicant  that  the  file  would  be
given to an attorney for review.  On March  26,  1993,  the  same  claims
examiner advised the applicant in writing of  the  specific  reasons  for
denial of her  request  for  direct  payment  of  the  support  payments.
However, after obtaining a legal opinion that the  applicant’s  note  did
not constitute a deemed election under the SBP, there is no evidence that
the claims examiner contacted the applicant to clarify the procedures for
making such an election even though she had requested the status  of  her
SBP  coverage.   Nor  is  there  any  evidence  indicating  any   further
communication from the applicant until  March  11,  1996,  following  the
death of her former spouse on January 11, 1996.  If  DFAS  officials  did
not respond to the applicant’s request for the status of her SBP coverage
at the time, it is indeed regrettable.  On the other hand,  there  is  no
evidence that the failure to respond was contrary to  prevailing  law  or
regulations.  Absent such a requirement, we believe  that  the  applicant
had the responsibility to continue to follow-up on her  request  for  the
status of her SBP coverage in a timely manner.  And,  in  our  view,  her
apparent failure to do so mitigates against resolving the benefit of  any
doubt in her favor.
___________________________________________________________________

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 31 July 2001, under the provisions of AFI 36-2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Ms. Kathy L. Boockholdt, Member
                 Ms. Patricia D. Vestal, Member

The following additional documentary evidence was considered:

    Exhibit E.   AFBCMR 96-01020, dated 16 Sep 1997, w/Exhibits A
                       through D.
    Exhibit F.   Letter, U.S. Court of Federal Claims, dated
                       17 May, 2001, w/atchs.
    Exhibit G.   Letter, HQ USAF/JAG, dated 21 June 2001, w/atchs.
    Exhibit H.   Letters, AFBCMR, dated 26 and 21 June 2001.
    Exhibit I.   Letter, Applicant, dated 16 July 2001, w/atch.



                                   DAVID C. VAN GASBECK
                                   Panel Chair




AFBCMR 96-01020




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:

      The pertinent military records of the Department of the Air Force
relating to [applicant], corrected to show that on 23 June 1992, he
elected to change his Survivor Benefit Plan (SBP) spouse only coverage to
former spouse coverage, based on reduced annuity, naming ---------- as
the former spouse beneficiary.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency




                         DEPARTMENT OF THE AIR FORCE
                               WASHINGTON, DC

Office of the Assistant Secretary

                                                                AUG 10, 2001

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
MILITARY RECORDS (AFBCMR)

FROM: SAF/Ml

SUBJECT: AFBCMR Case on

I have carefully considered the circumstances of this case and do not agree
with the AFBCMR panel that the applicant's request that she be named the
beneficiary of the decedent under the Survivor Benefit Plan (SBP) should be
denied.

Title 10, United States Code, Section 1450, provides, among other things,
that an (SBP) election may not be deemed to have been made 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. The
applicant timely submitted her amended divorce decree to DFAS with a
handwritten note but, failed to explicitly state in her note a request to
be designated the decedent's beneficiary under the SBP. She timely followed
up on her note by phone inquiring about the status of her SBP coverage. The
DFAS claims examiner clearly understood the apparent import of her note and
the amended decree -- that she was seeking a deemed change in beneficiary --
 because the case examiner sought clarification from their legal advisor
whether it was an effective document for that purpose. . It is also clear
to me that the decree and her note were seeking a deemed SBP election.
Although the examiner was informed of the attorney's opinion that the
documents were not effective, there is no indication in the records, OT
apparently in the recollection of the examiner, that any attempt was made
to contact the applicant and provide the applicant with an opportunity to
clarify her request. I believe it's reasonable to assume that, had the
applicant been timely informed, she would have provided the desired
clarification, assuming it was necessary.

In view of the foregoing, it is my opinion that the applicant was unfairly
denied SBP benefits that had been awarded to her by a court of law. This
was a significant injustice warranting relief. Accordingly, it is my
decision that the decedent's records be corrected to provide the applicant
a former spouse SBP annuity. In arriving at this decision, I am aware that
this decision will have no impact upon another person, the decedent's
spouse at the time of his
death, because she elected to receive Dependency and Indemnity Compensation
(DIC) from the Department of Veterans Affairs.


      FRED W. KUHN
      Principal Deputy Assistant Secretary
      (Manpower, Reserve Affairs,
         Installations and Environment)