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AF | BCMR | CY2002 | BC-2002-03158
Original file (BC-2002-03158.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-03158

      COUNSEL:  NONE

      HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

The decision to deny her an SBP annuity because she failed  to  file  within
one year of her divorce to the servicemember is unjust because  the  statute
was enacted three years after their divorce.

In support of her appeal, the applicant submits her  personal  statement,  a
letter from her Senator, and  a  copy  of  their  marriage  certificate  and
divorce decree.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the servicemember were married on 24 September 1952.

Prior to the member’s 1 August  1974  retirement  in  the  grade  of  master
sergeant, he elected spouse only SBP coverage, based on a reduced  level  of
retired pay.

The applicant and the member divorced on 3 February 1983.

The member remarried on 8 December 1984, but  did  not  notify  the  Defense
Finance and Accounting Service (DFAS) of his divorce or remarriage.

Effective 1 March 1986, Public Law (PL) 99-145  permitted  retiring  members
to select SBP coverage for a former spouse with the same  cost  as  coverage
options as a spouse.

During the one-year open enrollment periods authorized by  PLs  101-189  and
105-261, retirees were permitted to elect former spouse coverage during  the
periods 1 April 1992 through 31 March 1993  and  1  March  1999  through  29
February 2000, respectively.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Retiree Services Branch, AFPC/DPPTR, recommends  the  application
be denied and states, in part, that while there is no code or history  entry
that  specifically  reflects  the  decedent’s  SBP  was  stopped  under  the
provisions of PL 100-180 and no premiums deducted  after  his  1983  divorce
were ever refunded, it  is  appropriate  to  conclude  that  the  Air  Force
Accounting and Finance  Center  terminated  coverage  to  comply  with  that
statute.   Furthermore,  the  date  of  termination   coincides   with   the
opportunity afforded by  this  legislation.   Unfortunately,  DFAS  did  not
properly ensure copies of critical SBP documentation  were  safeguarded  and
retrievable.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that SBP was set up to protect the spouse and  this  is
why a spouse’s signature is required on all SBP  paperwork.   It  should  be
obvious that her best interests were not protected.  She  has  not  received
one piece of correspondence from the Air Force  informing  her  of  any  SBP
program changes.  If she had, she could have  pursued  the  issue  with  her
former spouse while he was still alive.

Applicant’s complete response is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was 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.  After a thorough review  of  the  evidence
of record and applicant’s submission,  we  are  not  persuaded  that  relief
should be granted.  Applicant’s contentions are duly noted; however,  we  do
not find these assertions, in and by themselves, sufficiently persuasive  to
override the rationale provided by the Air Force.   The  office  of  primary
responsibility has  adequately  addressed  applicant’s  contentions  and  we
agree with their opinion and adopt the rationale expressed as the basis  for
our decision that the applicant has failed to sustain her  burden  that  she
has suffered either an error or an injustice.  Hence, we find no  compelling
basis to recommend granting the relief sought.

_________________________________________________________________

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  Docket  Number  02-03158  in
Executive Session on 21 January 2003 under the provisions of AFI 36-2603:

                       Mr. David C. Van Gasbeck, Panel Chair
                       Ms. Patricia D. Vestal, Member
                       Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Oct 02, w/atchs.
    Exhibit B.  Member's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 26 Nov 02.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Dec 02.
    Exhibit E.  Letter, Applicant, dated 30 Dec 02.




                                   DAVID C. VAN GASBECK
                                   Panel Chair

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