RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-01316
            INDEX CODE 137.01
            COUNSEL:  TIM BIRNIE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

Her late former husband’s records be corrected to show that  he  elected  to
continue to provide Survivor Benefit  Plan  (SBP)  coverage  naming  her  as
beneficiary.

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APPLICANT CONTENDS THAT:

As part of their divorce decree, she was to continue to  be  listed  as  his
irrevocable SBP beneficiary; however, within the last few years, he  changed
his election.

In support of the appeal, the  applicant  submits  a  copy  of  the  Divorce
Decree.

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

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STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
former service member's military  records,  are  contained  in  the  letters
prepared by the appropriate offices of the Air Force (Exhibits C and F).

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AIR FORCE EVALUATIONS:

AFPC/DPPTR recommends the application be granted and states, in  part,  that
although  there  is  no  error,  to  preclude  a  possible  injustice,  they
recommend the member’s records be corrected to reflect his  spouse  coverage
was suspended effective 22 September 1983, and on 1 March 1986,  he  elected
to change his SBP spouse and child coverage to former spouse coverage  based
on the previous reduced level of retired pay, naming the  applicant  as  the
eligible beneficiary.  The effective date of 1 March 1986 is appropriate  as
this is the first date former spouse coverage could  have  been  established
under the same costs and conditions as spouse coverage.   However,  approval
should be contingent upon recoupment of the appropriate premiums.

AFPC/DPPTR states that the law in effect at  the  time  of  the  applicant’s
divorce did not allow retired members to provide SBP coverage even  if  they
wished to voluntarily  continue  their  former  spouse’s  eligibility.   The
member could have  elected  to  change  spouse  coverage  to  the  insurable
interest  type  of  former  spouse  coverage  during  the  one-year   period
authorized by Public Law 98-94 and to former spouse  coverage  at  the  same
cost as spouse coverage during the open enrollment period authorized  by  PL
99-145.  The member’s 27 November 1991 letter to the finance center  appears
indicative of his intent to maintain  the  applicant  as  the  eligible  SBP
beneficiary, but it is unfortunate he took no  corrective  action  for  over
ten years.

The AFPC/DPPTR evaluation is at Exhibit C.

AF/JAG states, in part, that the Board cannot rule on a dispute between  two
claimants (i.e., former spouse and current spouse) to a benefit only one  of
them can receive, without  taking  that  benefit  away  from  one  of  them.
Accordingly, it  is  not  appropriate  for  the  Board  to  adjudicate  such
disputes.  The Board should only grant the requested relief  in  such  cases
when a court of competent jurisdiction has decided the matter  in  favor  of
the claimant and recommends the Board advise  these  claimants  as  follows:
“Absent a court decision, the AFBCMR is precluded from  granting  a  request
to correct military records,  when  that  correction  would  take  away  the
benefit from another.  We are therefore returning your application,  without
prejudice.  If a court of competent jurisdiction  determines  that  you  are
entitled to the SBP benefits you claim, then you may reapply to  the  AFBCMR
to request such correction as may  be  necessary  to  give  effect  to  that
determination.”

The AF/JAG evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant’s counsel on 31 May and 10  June  2002  for  review  and  response
within 30 days.  However, as of this date, no response has been received  by
this office.

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THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.  After careful consideration of applicant's  request  and  the  available
evidence of record, we find insufficient evidence of error or  injustice  to
warrant corrective action.  In this respect, while the  facts  and  opinions
stated  in  the  advisory  opinion  from   the   SBP   office   of   primary
responsibility (OPR) appear to be  based  on  the  evidence  of  record  and
recommend the application be approved, we note that the legal  opinion  from
HQ USAF/JAG  indicates  that  it  is  not  appropriate  for  the  AFBCMR  to
adjudicate such a matter.  Absent  a  court  decision  reflecting  that  the
applicant is the proper beneficiary, we are  persuaded  that  the  Board  is
precluded from granting this request because such a  correction  would  take
away the benefit from the service member’s  widow.   Therefore,  until  such
time that a court of competent jurisdiction determines  that  the  applicant
is entitled to the SBP annuity, we find insufficient  basis  upon  which  to
disturb the existing record.

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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.

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The following members of the Board  considered  Docket  Number  02-00387  in
Executive Session on 16 August 2002, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Chair
                  Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 10 Apr 02, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPTR, dated 24 May 02, w/atch.
      Exhibit D.  Letter, AF/JAG, dated 28 Apr 00.
      Exhibit E.  Letter, SAF/MRBR, dated 31 May 02.
      Exhibit F.  Letter, AFBCMR, dated 10 Jun 02.




             BARBARA A. WESTGATE
             Chair