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AF | BCMR | CY2003 | BC-2002-03883
Original file (BC-2002-03883.doc) Auto-classification: Denied



                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03883
            INDEX CODE:  137.04

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Applicant is the  ex-spouse  of  the  former  service  member  who  is
requesting corrective action to reflect that  he  elected  spouse  and
child coverage thereby allowing  their  daughter  access  to  Survivor
Benefit Plan (SBP) payments.

_________________________________________________________________

APPLICANT CONTENDS THAT:

At retirement, her  now  deceased,  ex-spouse,  suffering  from  brain
cancer and impending blindness, did not have the  mental  capacity  to
comprehend or make judgements regarding SBP  election.   She  contends
that she was not aware of the rules  that  govern  SBP  and  therefore
could not have effective input to the election process.

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member contracted his enlistment in the Regular Air Force
on 13 January 1987.  A 15 October 1990 Physical Evaluation Board found
that the member should be permanently retired at a compensable  rating
of 100%.  He suffered from a non-resectable  grade  II-II  astrocytoma
and was not expected to improve.  Member was medically retired  on  29
November 1989 as an Airman 1st Class (E-3) after serving  1  year,  10
months and 17 days of active duty.

The deceased member elected spouse only SBP coverage  based  on  full,
retired pay effective 30 November 1988.  On 14 July 1991,  a  daughter
was born to the applicant and decedent.  There is no evidence that the
decedent notified the finance center of his daughter’s  birth  or  his
intention to add her to the Plan.  The  applicant  and  decedent  were
divorced on 1 September 1993, and the deceased member was not required
to maintain SBP  coverage  on  the  applicant.   The  deceased  member
neglected  to  inform  finance   officials   of   his   divorce   and,
consequently,  SBP  premiums  continued  to  be  withheld   from   his
retirement pay until his death on 3 December 2000.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommends denial.  DPPTR states that the  decedent  did
not submit a valid request during the allotted time to do so after the
birth of a child (one year), nor did he  take  advantage  of  an  open
enrollment  period  during  1999-2000  to  make  the   addition.    In
hindsight, DPPTR argues that  the  member  did  not  survive  for  the
mandatory two-year  period  beyond  the  open  enrollment  anyway  and
therefore his daughter would not have been eligible for an annuity.

DPPTR maintains that there is no evidence of  error  or  injustice  in
this case.  Their advisory is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
17 January 2003 for review and comment within 30  days.   As  of  this
date, there has been no response received by this office.

_________________________________________________________________

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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, there was no evidence presented to show that the  member  did
not have the mental capacity to make  a  reasoned  decision  regarding
child coverage during the one-year time period following  the  child’s
birth.  Therefore, in the absence of evidence to the contrary, we find
no compelling basis to recommend granting the relief  sought  in  this
application.

_________________________________________________________________

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 BC-
2002-03883 in Executive Session on 8 April 2003, under the  provisions
of AFI 36-2603:

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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Oct 02, w/atchs.
    Exhibit B.  Decedent's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPTR, dated 9 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Jan 03.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair

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