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AF | BCMR | CY2002 | 0200668
Original file (0200668.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-00668
            INDEX CODE:137.00

      APPLICANT (Deceased)   COUNSEL:  None

      SSN   HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

The service member was ordered by the court to  maintain  her  as  his
beneficiary under the SBP.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the service member were married on 14 Feb  47.   The
service member, prior to his 1 May 69 retirement, elected  spouse  and
child coverage under the Retired Serviceman's Family  Protection  Plan
(RSFPP).  The RSFPP was terminated when the service member, during  an
open enrollment, elected coverage under SBP for spouse and child based
on a reduced level of retired pay.

The applicant and the service member's divorce was finalized on 20 Jan
75.  The divorce decree ordered that after the deduction  of  the  SBP
payment from the service member's military retirement pay, the service
member would received 60 percent pay and the applicant  would  receive
40 percent of the retired pay.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR reviewed  the  application  and  states  in  reviewing  the
service member's records there is no evidence that he attempted
to terminate the applicant's SBP following their divorce; nor is there
any evidence to indicate that he requested cessation of costs when the
law permitted SBP premiums to cease after a spouse  beneficiary  loses
eligibility,  therefore,   they   cannot   speculate   regarding   his
intentions.  Furthermore, there is  no  indication  that  the  service
member believed, or expected the applicant remain as  the  beneficiary
of his SBP  after  the  costs  of  her  coverage  ceased.   Until  the
enactment of PL 98-525, there was no provision in the  law  permitting
the courts to require former  spouse  coverage  be  continued  if  the
retiree did not agree to that provision; therefore,  the  language  in
the  applicant's  divorce  decree  is  not  legally  binding.    DPPTR
recommends the requested relief 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  the
applicant on 22 Mar 02, 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  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.   The
language  in  the  divorce  decree  is  duly  noted;  however,   these
provisions apparently are not legally binding because the law did  not
provide for former spouse coverage during the contested  time  period.
Further, we find no evidence that the service  member  ever  requested
former spouse coverage under the provisions of either PL 98-94 or  99-
145.  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 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 AFBCMR Docket Number 02-
00668 in Executive Session on 16 August 2002, under the provisions  of
AFI 36-2603:

                       Mr. Roscoe Hinton, Jr., Acting Panel Chair
                       Mr. Joseph A. Roj, Member
                       Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 20 Feb 02, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 14 Mar 02.
      Exhibit C. Letter, SAF/MRBR, dated 22 Mar 02.




                             ROSCOE HINTON, JR.
                             Acting Panel Chair

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