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


IN THE MATTER OF:      DOCKET NUMBER:  BC-1995-00482
            INDEX CODE:  137.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, she now  requests  her  late
husband's records be  changed  to  reinstate  coverage  under  the  Survivor
Benefit Plan.

_________________________________________________________________

STATEMENT OF FACTS:

On 23 May 1996, the Board considered an application submitted by the  former
service member requesting his records be corrected to  reflect  he  filed  a
timely Survivor Benefit Plan (SBP) election to change from spouse to  former
spouse coverage based on full retired pay.  After considering  the  evidence
provided, the  Board  determined  it  was  insufficient  to  find  error  or
injustice and denied the application.  For an accounting of  the  facts  and
circumstances surrounding the applicant’s request,  and,  the  rationale  of
the earlier decision by the Board, see the Record of Proceedings at  Exhibit
D.

The former servicemember died on 15  April  2003.   His  former  spouse  now
requests that her deceased ex-husband’s records be changed to reinstate  SBP
coverage.  In support of her appeal, she provided a  personal  statement,  a
copy of her divorce decree, marriage license, her birth certificate, a  copy
of a letter from her physician and the decedent’s  death  certificate.   The
applicant’s complete submission is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in  support
of the appeal, a majority of the Board remains 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 clearly directed her deceased  former  spouse
to continue to provide 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  member
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  make  a
deemed election because she did not notify the Secretary of the court  order
within the required timeframe.   While  we  are  not  unsympathetic  to  the
applicant’s situation, in the absence of any evidence which  would  lead  us
to believe that she took any action which could be construed as meeting  the
statutory requirements for a  request  for  a  deemed  election  for  former
spouse SBP coverage, a majority of the Board concludes  that  the  applicant
has failed to establish the existence of error or  injustice.   In  view  of
the foregoing and in the absence of evidence  to  the  contrary,  the  Board
majority finds no compelling  basis  on  which  to  favorably  consider  the
requested relief.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-1995-
00482 in Executive Session on Tuesday, 12 Aug 2003, under the provisions  of
AFI 36-2603:

      Mrs. Barbara A. Westgate, Chair
      Ms. Kathy L. Boockholdt, Member
      Ms. Patricia D. Vestal, Member

By a majority vote, the Board recommended denial of the  application.   Mrs.
Westgate voted to grant the applicant’s request  and  submitted  a  Minority
Report.  The following documentary evidence was considered:

      Exhibit D.  Record of Proceedings, dated 26 November 1996,
                with Exhibits.
      Exhibit E.  Applicant’s DD Form 149, dated 4 June 2003, with
                attachments.
    Exhibit F.  Letter, Minority Report, dated 21 August 2003.





                                   BARBARA A. WESTGATE
                                   Chair


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
               FOR CORRECTION OF MILITARY RECORDS

SUBJECT:  Minority Report - APPLICANT
      I have carefully considered all aspects of this case and do not agree
with the opinion of the majority of the panel that the applicant’s request
should be denied.
      My colleagues note the applicant failed to execute a deemed election
for former spouse coverage within the one-year statutory period and,
although sympathetic to her dilemma, do not find the existence of either an
error or an injustice.  They also believe that since there are a lot of ex-
spouses similarly situated, it would not be fair to grant relief to the
applicant.
      This case is different because (unlike most cases we’re asked to
decide) we have a record of the deceased former service member attempting
to provide the coverage in question in accordance with the terms of his
divorce decree.  Moreover, had we granted the former serviceman’s earlier
application, the applicant would have been eligible for the annuity she now
seeks.  Lastly, since the former service member was divorced at the time of
his death, we are not facing the issue of possibly depriving another spouse
of the annuity.
      In view of the foregoing and since there is no dispute concerning an
eligible beneficiary, I believe that equity and justice demands the relief
sought be granted.




                                             BARBARA A. WESTGATE
                                        Chair





MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: SAF/MRB

SUBJECT:    AFBCMR Application of APPLICANT


      I have carefully reviewed the circumstances of this case and do not
agree with the recommendation of the majority of the AFBCMR panel that the
applicant’s request that her former husband’s records be corrected to
reinstate her coverage under the Survivor Benefit Plan (SBP) should be
denied.

      Although sympathetic to the applicant’s situation, the majority of the
panel found no evidence that she took any action to execute a deemed
election for former spouse SBP coverage within the one-year statutory
period and, therefore, had failed to establish the existence of error or
injustice.  Unfortunately, there are no procedures in place to notify a
former spouse that the retired service member has not complied with the
terms of their divorce decree or that he/she can request an election be
deemed on his/her behalf.

      Nevertheless, unlike many cases such as this one, there is evidence
that the deceased former service member attempted to change his SBP
coverage to comply with the terms of his divorce decree.  Based on the
totality of the circumstances of this case, I believe that the applicant
has established that an injustice has occurred and to deny her request
would be to deny her an asset awarded to her by the court.  Therefore, I
agree with the minority member that equity and justice demand that the
requested relief be granted.

                                       JOE G. LINEBERGER
                                       Director
                                       Air Force Review Boards Agency




AFBCMR BC-1995-00482




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 13 October 1993, he
elected to change his Survivor Benefit Plan (SBP) spouse coverage to former
spouse coverage, based on full retired pay, naming, as the former spouse
beneficiary.




            JOE G. LINEBERGER
            Director

            Air Force Review Boards Agency