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AF | BCMR | CY2003 | BC-2002-03271
Original file (BC-2002-03271.doc) Auto-classification: Approved

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-03271

      COUNSEL:  None



            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former husband's records be corrected to show he  filed  a  timely
election for former spouse coverage under the  Survivor  Benefit  Plan
(SBP) and any SBP premium payments due be waived.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In accordance with the attached Divorce Settlement, her former husband
should have changed the SBP coverage  from  Spouse  to  Former  Spouse
within 1 year of the divorce.  However, it was erroneously changed  to
No Beneficiary on 1 July 1994.  The divorce  was  finalized  on  March
1993.  She was not informed of the SBP change.  She truly believes the
change was made erroneously and her former husband  assumed  that  she
would be informed by the Finance Center if there were a problem.

She understands that the SBP must be  paid  before  she  receives  the
Annuity payments.  However, she respectfully  requests  that  this  be
waived due to her medical and financial situation.  She is  undergoing
dialysis treatments for  kidney  failure  due  to  complications  from
Diabetes Type II.  When her former husband  passed  away  on  19  July
2002, her former spouse income  was  terminated.   She  is  requesting
assistance through the Social Security System and her total income  is
currently approximately $565 each month.

In support of her request, applicant submits a  marriage  certificate,
Divorce Settlement, SBP Information Sheet, Death  Certificate,  letter
from her doctor, DD Form 1884, Application For Annuity  under  Retired
Serviceman’s Family Protection Plan (RSFPP)  and/or  Survivor  Benefit
Plan  (SBP),  and  DD  Form  2789,  Waiver/Remission   of   Indebtness
Application.

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

_________________________________________________________________

STATEMENT OF FACTS:

The member and applicant married on 17 October  1964  and  the  member
elected spouse and child coverage based on a reduced level of  retired
pay prior to his 1 November 1986 retirement.  The parties divorced  11
March 1993 and the divorce decree awarded the SBP  to  the  applicant;
however, neither party submitted a valid election  change  within  the
required time period.  In September  1993,  the  Defense  Finance  and
Accounting Service (DFAS) suspended the spouse  portion  of  the  SBP.
The youngest child (date of birth 6 January 1972) lost eligibility  in
June 1994.  The member died on 19 July 2002.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR reviewed this application  and  states  that  there  is  no
error.  However, to preclude a possible injustice,  we  recommend  the
member’s record be corrected to reflect that  on  12  March  1993,  he
elected to change SBP spouse and child to former spouse coverage based
on the previous reduced level of retired pay, naming Esther  M.  White
as the eligible  beneficiary.   Approval  should  be  contingent  upon
recoupment of appropriate premiums.  In the event relief  is  granted,
the unpaid contributions to the SBP that  should  have  been  deducted
from  the  member’s  retired  pay  through  the  date  of  his   death
(approximately $9,100) will be collected from any annuity payment  the
applicant would be entitled to receive.

AFPC/DPPTR evaluation is provided at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  15
Nov 02 for review and comment.  As of this date, no response has  been
received by this office.

_________________________________________________________________

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.  Sufficient relevant evidence has been presented to demonstrate the
existence of an error or injustice warranting partial  relief.   After
thoroughly reviewing the circumstances of this case, it is the Board's
opinion that the former spouse should  receive  SBP  coverage  at  the
reduced level of  retired  pay  to  comply  with  the  divorce  decree
awarding the asset to her by the court.  Therefore, the Board  accepts
the opinion  and  recommendation  from  the  Chief,  Retiree  Services
Branch, and recommends that the records  of  the  deceased  member  be
corrected to the extent indicated below.

4.  Insufficient relevant evidence has  been  presented  warranting  a
waiver of the premiums due for the period September 1993 to July 2002.
 In this respect, we  note  that  the  deceased  member  in  order  to
continue his SBP coverage, based on the  court  decision,  would  have
been required to pay the necessary premiums.  While we understand  the
applicant's medical and financial situation, the law requires that the
premiums be paid.  In view of the above, we do not recommend favorable
action on this portion of her application.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military  records  of  the  Department  of  the  Air  Force
relating to FORMER MEMBER, be corrected to show that on 12 March 1993, he
elected to change his SBP election from "spouse and  child"  coverage  to
"former spouse coverage" based on reduced level of  retired  pay,  naming
Esther M. White as the eligible beneficiary.

_______________________________________________________________

The following members of the Board considered Docket  Number  02-0321  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 2 Oct 2002, w/atchs.
     Exhibit B. Letter, AFPC/DPPTR, dated 14 Nov 02.
     Exhibit C. Letter, SAF/MIBR, dated 22 Dec 2000.





                                   DAVID C. VAN GASBECK
                                   Panel Chair

AFBCMR 02-03271




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  12  March  1993,  he
elected to change his SBP election from "spouse and  child"  coverage  to
"former spouse coverage" based on reduced level of  retired  pay,  naming
XXXX XXXX as the eligible beneficiary.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency




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