RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03521
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband's records be corrected so that she may be eligible
for a Survivor Benefit Plan (SBP) annuity.

___________________________________________________________________

APPLICANT CONTENDS THAT:

When her husband reached retirement eligibility  for  pay  purposes
they had been married for  a  year  and  eight  months.   Her  late
husband submitted his application for retirement on 16 Sep 88.   He
submitted his DD Form 1883, Survivor Benefit Election, and AF  Form
114, Arrears of Retired Pay Designation and/or Annuity  Beneficiary
Changes and designated her on both forms.  In Feb 94, the  deceased
member filed a Motion to Modify the Decree of  Divorce,  which  was
later dropped because it was too expensive.   The  deceased  member
was placed in Horizon Hospice program in Apr 01 and  the  applicant
says she became his full time caregiver.  She says  that  her  late
husband wanted her to have his survivor benefits and he fought like
heck in court for his rights.

In support of her appeal, applicant  provided  her  late  husband’s
death certificate, her marriage license, a copy of DD Form 1883 and
AF Form 114, both dated 16 Sep 88.

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

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STATEMENT OF FACTS:

The Air Force stated that the decedent and his former  spouse  were
married on 26 Feb 66.  Their divorce was finalized  on  6  May  87.
The former spouse submitted a valid request for a  deemed  election
to the  finance  center  within  the  first  year  following  their
divorce.

The applicant and the decedent married on 13 Jul 87.  The  decedent
was a Reservist who began receiving retired pay at age  60.   Prior
to that date, he  completed  forms  naming  the  applicant  as  the
eligible SBP beneficiary for spouse only  coverage  based  on  full
retired  pay.   However,  when  his   retired   pay   account   was
established, the finance center correctly disregarded his  election
and honored his former  spouse’s  valid  deemed  election  for  SBP
former spouse coverage, which had been held in abeyance  until  the
decedent’s retirement consummated.  The decedent’s former  spouse’s
birth date was properly reflected as the eligible  former  spouse’s
date of birth and costs for her coverage  were  deducted  from  the
decedent’s retired pay until his 14 Oct 02 death.   The  decedent’s
former spouse is currently receiving the full SBP annuity.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR reviewed this  application  and  recommended  denial.
They state that Public Law (PL) 98-525 permitted former spouses  to
submit a request to deem an SBP election change following  divorce.
The member must have agreed to provide former spouse  coverage  and
the former spouse’s deemed election must have been submitted before
1 Oct 85, or within one year of the date  of  the  court  order  if
later.  PL 99-145 authorized elections for former  spouse  coverage
to have the same provisions as spouse coverage.   However,  because
of technical error in  the  language  of  PL  99-145  (subsequently
corrected by enactment of PL 101-189), the SBP annuity of surviving
former spouses age 62 or older is not reduced if  the  divorce  was
finalized before 29 Nov 89.  PL 105-85 removed  the  previous  one-
year time limit required for a retiree to  submit  an  election  to
change from former spouse coverage to spouse coverage following the
member’s remarriage.  However, this modification did not remove the
requirement to have the divorce decree amended if applicable.

There is no record that the member sought to have  the  requirement
to provide former spouse SBP coverage  amended  or  rescinded.   It
would be inappropriate to deny the former spouse an asset  she  was
awarded by the court, or to provide SBP entitlement to  this  widow
on the basis of the evidence presented.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 20 Dec 02 for review and comment within 30  days.   As  of  this
date, no response has been received by this office (Exhibit D).

A copy of a HQ USAF/JAG opinion, dated 28 Apr 00, was forwarded  to
the applicant on 16 Jan 03 for review and comment within  30  days.
As of this date, no response  has  been  received  by  this  office
(Exhibit E).

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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 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.   After  careful
consideration of applicant’s request and the available evidence  of
record, we agree with the opinion and recommendation of the  Chief,
General Law Division, that in the absence of 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.  If a court  of  competent  jurisdiction  determines  that
applicant is entitled to the SBP benefits claimed, she may  reapply
to the AFBCMR to request such correction as  may  be  necessary  to
give effect to that determination.  In view of  the  foregoing,  we
find no basis to disturb the existing record.

___________________________________________________________________

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
02-03521 in Executive Session on 8 April 2003, under the provisions
of AFI 36-2603:

      Mrs. Kathy L. Boockholdt, Panel Chair
      Mr. Roscoe Hinton Jr., Member
      Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPTR, dated 11 Dec 02, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.
    Exhibit E.  Letter, AFBCMR, dated 16 Jan 03, w/atch.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair