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


IN THE MATTER OF:      DOCKET NUMBER:  01-00569

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

This request for reconsideration of the application for  the  correction  of
the records of APPLICANT was submitted by -- (former spouse).


APPLICANT REQUESTS THAT:

In the applicant’s  request  for  reconsideration,  she  requests  that  the
military records of her former spouse be corrected to show that she  is  the
legal beneficiary of his Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________

STATEMENT OF FACTS:

The former member and the applicant were married on  2  September  1978  and
divorced on 23 July 1993.  The separation agreement (incorporated  into  the
divorce decree) ordered the former member to elect  former  spouse  coverage
at the earliest time possible, but the applicant failed to submit  a  deemed
election  request  within  the  required  time  limit.   The  former  member
remarried on 26 November 1993 and elected spouse  and  child  SBP  coverage,
based on full retired pay, prior to his 1 September  1996  retirement.   The
former member died on 29 January 2001 and his widow is receiving  a  monthly
annuity.

A similar appeal was considered and denied  by  the  Board  on  25 September
2001.  A summary of  the  evidence  considered  and  the  rationale  of  the
earlier decision by the Board is set forth in the Record of  Proceedings  at
Exhibit E.

The  applicant’s  12  October  2001  request  for  reconsideration  of   her
application was denied by the AFBCMR on 26 October 2001.  On 27 March  2002,
in response to a congressional inquiry, in  behalf  of  the  applicant,  the
AFBCMR again denied the  applicant’s  request  for  reconsideration  of  her
application.

The applicant has submitted another application for correction  of  records.
Inasmuch as her current application contains the  same  request,  which  was
previously considered by the Board, it is being processed as a  request  for
reconsideration  of  the  initial  application.   It  is   the   applicant’s
contention that she is  the  rightful  and  legal  beneficiary  of  the  SBP
annuity of her former spouse as evidenced by the Decree  of  Dissolution  of
Marriage and Separation Agreement.  To support her  request,  the  applicant
provided a personal statement and copies of the  Decree  of  Dissolution  of
Marriage  and  the   Separation   Agreement.    The   applicant’s   complete
submission, with attachments, is at Exhibit F.
_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request, the  General  Law  Division,  HQ  USAF/JAG,
addressed the issue of whether or not the applicant’s divorce  decree,  with
separation agreement, meets the criteria specified in a previous opinion.

JAG reviewed the applicant’s most recent  submission  and  stated  that  the
Board acted correctly  in  denying  the  applicant’s  original  request  for
reconsideration.  No one doubts the  validity  of  the  applicant’s  divorce
decree, or that it imposed a legal duty upon the former  member  to  make  a
former spouse SBP election upon his retirement.  But  the  validity  of  the
divorce decree is not the issue.  Congress  recognized  that  some  military
members might not comply with a court order to designate a former spouse  as
the SBP beneficiary.  Thus, Congress provided, under 10  U.S.C.  1450(f)(3),
that the  former  spouse  could  force  the  designation  by  notifying  the
Secretary concerned of the court order within one (1) year of  the  date  of
the court order.  JAG indicated that the applicant had until  July  1995  to
notify the Secretary of the court order and protect  her  rights  under  the
divorce decree.  The applicant failed to comply with the  law  and  did  not
notify the Secretary until February 2001, almost seven (7) years  too  late,
therefore, she forfeited her right to a deemed  election.   JAG  understands
that the applicant’s former spouse may have deceived  her,  indicating  that
he had  complied  with  the  court  order.   If  so,  then  the  applicant’s
complaint is with the estate of her former spouse and her only recourse  may
be to bring suit against the estate or the  person  now  receiving  the  SBP
annuity.  If after bringing such suit, a  court  of  competent  jurisdiction
determines that applicant is entitled to a portion of the SBP annuity,  then
pursuant to that court order, the Board may grant applicant’s request.   The
HQ USAF/JAG evaluation is at Exhibit G.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of  the  Air  Force  evaluation  was  forwarded  to  applicant  on  6
September 2002 for review and response.  As of this date,  no  response  has
been received by this office (Exhibit H).
_________________________________________________________________

THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in  support
of the appeal,  we  remain  unpersuaded  that  a  revision  of  the  earlier
determination in this case is warranted.  We  have  carefully  reviewed  the
applicant’s submission in judging the merits of this case.  The  applicant’s
divorce decree, with separation agreement,  clearly  directed  her  deceased
former spouse to elect former spouse SBP coverage for her.  In this  regard,
we are constrained to note that the  applicable  statute  (10  USC,  Section
1450 (f)(3)), time limit for request by former  spouse,  provides  that  “An
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.”  Such a requirement permits  a  former  spouse
to circumvent the stipulations of a divorce decree if  the  affected  former
spouse does not file a timely  request  for  a  deemed  election  of  former
spouse SBP coverage.  Unfortunately,  neither  the  former  member  nor  the
applicant took action to notify the appropriate authorities of  the  divorce
at that time.  Therefore, the applicant forfeited  her  right  to  a  deemed
election because she did not notify the Secretary of the court order  within
the required timeframe.   In  view  of  the  above  and  while  we  are  not
unsympathetic to the applicant’s situation, in the absence of  any  evidence
which would lead us to believe that the  applicant  took  any  action  which
could be construed as meeting the statutory requirements for a  request  for
a deemed election for former spouse SBP coverage, we agree with the  opinion
and recommendation of the appropriate Air Force  office  (HQ  USAF/JAG)  and
adopt their rationale as the basis for our  conclusion  that  the  applicant
has failed to establish  the  existence  of  probable  error  or  injustice.
However, should the applicant bring suit against the estate  or  the  person
now receiving the SBP annuity and, if  a  court  of  competent  jurisdiction
determines that the applicant is entitled to a portion of the  SBP  annuity,
she may reapply to the Board.  In view of the foregoing and in  the  absence
of evidence to the contrary,  we  find  no  compelling  basis  on  which  to
favorably consider the requested relief.
_________________________________________________________________

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 1 April 2003, under the provisions of AFI 36-2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Mr. Joseph A. Roj, Member
                 Ms. Patricia D. Vestal, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number 01-00569.

      Exhibit E.  Record of Proceedings, dated 25 September 2001,
                with Exhibits.
      Exhibit F.  DD Form 149, dated 26 July 2002, with
                attachments.
      Exhibit G.  Letter, HQ USAF/JAG, dated 26 August 2002.
      Exhibit H.  Letter, AFBCMR, dated 6 September 2002.




                                   DAVID C. VAN GASBECK
                                   Panel Chair