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AF | BCMR | CY2003 | BC-2002-02145
Original file (BC-2002-02145.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02145
            INDEX CODE:137.00

      APPLICANT  COUNSEL:  None

      SSN   HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The effective date of the correction of his original application,  for
former spouse coverage under  the  Survivor  Benefit  Plan  (SBP),  be
changed to 8 Dec 93 instead of 12 Jul 89, thus eliminating the debt he
incurred.

_________________________________________________________________

APPLICANT CONTENDS THAT:

When the Board corrected his original request it created  a  debt  for
him.  The Board should have made the effective date the  same  as  the
modification to the divorce decree.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 7 Mar 02, the Board considered and granted the applicant's  request
to show he elected former spouse coverage for an SBP annuity.

The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are  contained  in  the  letter
prepared by the appropriate office of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states Title 10 USC Section 1450 (f)(3) allows for  an  SBP
election to be made on behalf of  the  former  spouse,  providing  the
election is submitted to the Defense and  Finance  Accounting  Service
within the first year following  the  divorce  and,  if  enacted,  the
coverage will be retroactive to the  date  of  the  divorce.   If  the
original divorce decree is silent on  SBP  and  is  later  amended  or
modified to incorporate SBP, the law provides the former  spouse  one-
year after the date of the court order to request  coverage  for  SBP.
The one-year opportunity does not apply after a  modification  to  the
divorce decree.

It appears the attorney for the former spouse attempted to act on  her
behalf in initiating a request for SBP based on  the  modification  to
the divorce decree.   But  there  is  no  evidence  that  the  request
occurred within the first  year  of  the  amended  court  order.   The
language of the modification was imprecise, and if  the  election  was
sent to DFAS-CL it may have been set aside without action.

Until passage of Public Law (PL) 105-261, a deemed election  was  held
in abeyance while the finance center notified  the  member  to  inform
them that the effective date of the election and possible  cost  could
be delayed to the end of the one-year  period  following  the  divorce
providing the member had submitted a  voluntary  election.   In  their
original advisory they recommended granting the requested relief,  but
under the constraints  of  current  statutory  requirements;  however,
after consulting with legal counsel, they believe partial relief could
be extended to the applicant by applying the standards that would have
been in effect at time if the applicant had  requested  relief  before
the passage of PL 105-261.  DPPTR further states there is no  evidence
of an Air Force error or  injustice  and  recommends  the  request  be
denied.

A complete copy of the evaluation is attached at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant, in support of his request, submitted letters  from  his
former spouse's attorney, indicating the attorney, on  behalf  of  his
former spouse, submitted a request for SBP (Exhibit D).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant’s complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and the recommendation of  the  Air
Force and adopt their rationale as the basis for our  conclusion  that
the applicant has not been the victim of an error or  injustice.   The
applicant’s previous request to change  his  SBP  spouse  coverage  to
former spouse coverage was granted.  The applicant  now  contends  the
Air  Force  erred  in  determining  his  effective  date  of  coverage
believing it should be established on the date his divorce decree  was
modified; however, the applicant’s effective  date  for  coverage  was
determined in accordance with the applicable law in effect at the time
he applied for correction of records.   Therefore, in the  absence  of
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought in this application.

4.    The applicant's case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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-
02145 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 5 Jul 02, w/atch.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 22 Jul 02.
      Exhibit C. Letter, SAF/MRBR, dated 26 Jul 02.
      Exhibit D. Applicant’s Response, dated 22 Aug 02.




                             DAVID C. VAN GASBECK
                             Panel Chair

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