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AF | BCMR | CY2003 | BC-2003-00408
Original file (BC-2003-00408.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER: BC-2003-00408

                 INDEX CODE:       137.01
                 COUNSEL:  None

                       HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased ex-husband’s records be corrected to show that he elected
to participate in the Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her ex-husband told her he  elected  SBP  at  the  time  of  his  1972
retirement and he agreed to continue coverage on her behalf  in  their
divorce.

In support of her request, applicant provided a notarized  copy  of  a
Judgment  of  Dissolution  of  Marriage,  and   her   late   husband’s
Certificate of Death.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former member and the applicant were married on  6  January  1951.
The member did not enroll in  the  Retired  Serviceman’s  Family  Plan
(RSFPP) prior to his 1 September 1972 retirement and did not elect SBP
coverage on the applicant’s behalf during the  three  open  enrollment
periods.  They divorced on 5 April 1993 and the divorce decree ordered
that the member “obtain and/or maintain” the  SBP  on  behalf  of  the
applicant.  The former member remarried on 4 November 1995 and died on
11 October 2002.

________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPTR  recommends  denial.   The  former  member  had   three
opportunities to elect SBP coverage for the applicant while they  were
married, but failed to do so.  If he had elected SBP coverage for her,
he would have been eligible to change to former spouse coverage within
the first year following their divorce.  It would  be  inequitable  to
those members who chose to participate when eligible and  subsequently
received reduced retired  pay,  and  to  other  former  spouses  whose
sponsors chose not to  participate,  to  provide  entitlement  to  the
applicant on the basis of the evidence presented.  Further, courts may
not require persons to take action prohibited by Federal stature.

The DPPTR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the advisory and states that she  and  her  ex-
husband signed forms agreeing to participate in the  RSFPP,  prior  to
his retirement from the Air Force and that this entitlement  was  part
of their divorce  settlement.   She  also  states  that  she  was  not
informed that she would have to check to make sure the  RSFPP  was  in
effect.

The applicant’s complete submission, with attachments, is  at  Exhibit
D.
_________________________________________________________________

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.  After a thorough review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that the deceased member’s records  should  be  altered  so  that  his
former spouse would be eligible to receive a SBP annuity.  Applicant’s
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the Air Force.   We  therefore  agree  with  the
recommendation of the Air Force and adopt the rationale  expressed  as
the basis for our decision that the applicant has  failed  to  sustain
her burden of having suffered either an error  or  an  injustice.   In
view of the above and absent persuasive evidence to the  contrary,  we
find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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 Docket  Number  BC-2003-
00408 in Executive Session on 26 June 2003 under the provisions of AFI
36-2603:

                  Mr. Joseph A. Roj, Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 30 Jan 03, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 3 Mar 03.
   Exhibit C.  Letter, SAF/MRBR, dated 7 Mar 03.
   Exhibit D.  Letter, Applicant, dated 31 Mar 03, w/atchs.




                                   JOSEPH A. ROJ
                                   Panel Chair


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