RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00516
            INDEX CODE:137.00

            COUNSEL:  None

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse  coverage
under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The records should be corrected based on the Decree of Divorce and the
fact that neither his former spouse, nor he consented to the SBP being
stopped.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and B. were married on 24  April  1964.   The  applicant
prior, to his  1  March  1991  retirement,  elected  spouse  only  SBP
coverage based on a reduced level of retired  pay.   He  and  B.  were
divorced on 21 January 1999 and the divorce  decree  ordered  that  B.
remain the SBP beneficiary.  There is no  indication  in  the  records
that either the applicant or B. requested an election  to  change  the
SBP coverage from spouse  to  former  spouse  during  the  first  year
following their divorce.  The Defense Finance and  Accounting  Service
(DFAS)  learned  of  the  applicant’s  divorce  and  suspended  spouse
coverage retroactive to  the  date  of  the  divorce.   The  applicant
married P. on 16 March 2001.  There is  no  indication  the  applicant
notified the Defense Finance and  Accounting  Service  (DFAS)  of  the
change in his marital status or requested an election on  his  current
wife’s behalf.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states that a spouse's eligibility as  an  SBP  beneficiary
terminates upon divorce.  There are two mechanisms provided by law for
changing SBP coverage from spouse to former spouse, and both  must  be
exercised  within  the  first  year  following   the   divorce.    The
servicemember can file an election change or  the  former  spouse  can
request that the change be made on their behalf.   The  former  spouse
upon requesting the change must submit legal  documentation  that  the
servicemember agreed to or that the court ordered the servicemember to
establish former spouse coverage.  If an election is not  made  during
the one-year eligibility period, former spouse  coverage  may  not  be
established thereafter.

DPPTR recommends the applicant’s records be corrected  to  reflect  he
elected to change his  SBP  coverage  from  spouse  to  former  spouse
coverage based on reduced retired pay,  naming  B.  as  former  spouse
beneficiary

A complete copy of the Air Force evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 13 February 2004, for review and response.   As  of  this
date, no response has been received by this office.

On 16 March 2004 and 30 April 2004,  the  Board  staff  forwarded  the
applicant copies of  memorandums  from  HQ  USAF/JAA,  which  will  be
considered in the processing of his application (Exhibits D & E).

The applicant submitted a notarized statement dated 22 March 2004 from
his current spouse relinquishing  her  potential  entitlement  to  SBP
(Exhibit F).

A complete copy of the Applicant’s response is attached at Exhibit F.

_________________________________________________________________

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.    Sufficient relevant evidence has been presented to  demonstrate
the existence of an injustice.  We took  notice  of  the  applicant's
complete  submission   in   judging   the   merits   of   the   case.
Notwithstanding  the  opinions  rendered  by   HQ   USAF/JAA,   after
thoroughly reviewing the  circumstances  of  this  case,  it  is  the
opinion of the Board majority that the former spouse  should  receive
the SBP annuity at the reduced level of retired pay  to  comply  with
the divorce decree awarding the asset  to  her  by  the  court.   The
majority notes the current spouse has provided a notarized  statement
relinquishing her entitlement to the SBP.  The majority is  persuaded
it was the applicant’s intent to provide his former  spouse  the  SBP
annuity and is satisfied his current spouse is  fully  aware  she  is
relinquishing her entitlement to the annuity.  Therefore,  the  Board
majority accepts the opinion and recommendation from  the  Air  Force
and recommends the applicant’s records be  corrected  to  the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 22  January  1999,
he elected under the Survivor Benefit Plan to change his coverage from
“spouse”  to  “former  spouse,”  naming           as   former   spouse
beneficiary, based on reduced retired pay.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-00516 in Executive Session on 14 April  2004  and  18 June  2004,
under the provisions of AFI 36-2603:

                       Mr. Roscoe Hinton, Jr., Panel Chair
                       Mr. Michael J. Novel, Member
                       Ms. Kathy L. Boockholdt, Member

By majority vote, the Board recommended granting the application.  Ms.
Boockholdt voted to deny correcting  the  records  but  she  does  not
desire  to  submit  a  Minority  Report.   The  following  documentary
evidence was considered:

      Exhibit A. DD Form 149, dated 31 Dec 03, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 6 Feb 04, w/atchs.
      Exhibit C. Letter, SAF/MRBR, dated 13 Feb 04.
      Exhibit D. Letter, AFBCMR, dated 16 Mar 04, w/atch.
      Exhibit E. Letter, AFBCMR, dated 30 Apr 04, w/atch.
      Exhibit F. Applicant’s Response, dated 22 Mar 04, w/atch.




                             ROSCOE HINTON, JR.
                             Panel Chair







AFBCMR BC-2003-00516






MEMORANDUM FOR THE CHIEF OF STAFF

      Under the authority of Section 1552, Title 10, United States
Code, Air Force Instruction 36-2603, and having assured compliance with
the provisions of the above regulation, the decision of the Air Force
Board for Correction of Military Records is announced, and it is
directed that:

      The pertinent military records of the Department of the Air Force
relating to               , be corrected to show that on 22 January
1999, he elected under the Survivor Benefit Plan to change his coverage
from “spouse” to “former spouse,” naming           as former spouse
beneficiary, based on reduced retired pay.




                 JOE G. LINEBERGER
                 Director
                 Air Force Review Boards Agency