RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01168
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken to  show  her  entitlement  to  a  Survivor
Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She and the now-deceased, former member were married and she spent his
entire Air Force career with him.  They  had  four  children  when  he
retired in 1973.  Their military life was not an easy  one  and  their
relationship totally disintegrated after  his  retirement  leading  to
their divorce in 1978.  She states her divorce decree did not  address
the SBP annuity because her counsel advised her that once  the  member
began receiving retired  pay  that  neither  the  “…condition  of  the
annuity nor the beneficiary could be changed.”  She is  writing  after
30 years because she recently found out the SBP plan could  apparently
be changed after the receipt of benefits.  During  the  time  she  has
pursued the annuity she has been told many things such as  she  is  no
longer qualified because of their divorce, he  did  not  pay  premiums
needed to cover the annuity after their divorce, and that her  divorce
decree would have had to spell out that the annuity be kept in  effect
after their divorce.  She could use the money as their daughter has  a
malignant brain tumor that friends and family are contributing towards
to help defray hospital  costs  and  other  medical  costs.   She  had
thought her share of the SBP annuity could have been her  contribution
to her daughter’s cost of care.  Nevertheless, she is  also  concerned
for all the other  spouses  who  spent  20  years  in  the  Air  Force
supporting their husbands and because of rules  now  have  nothing  to
show for it.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement, copies of her marriage certificate, SBP election forms, her
Air Force Certificate of Appreciation, her  divorce  decree,  and  her
former husband’s death certificate.

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

_________________________________________________________________



STATEMENT OF FACTS:

The now deceased, former member had elected spouse only  SBP  coverage
based on a reduced level of retired pay prior to his retirement  on  1
March 1973.  The applicant and the decedent divorced on 5  March  1976
and pay records show that spouse only coverage was suspended prior  to
19 December 1978.  The decedent remarried on 9 May 1987  but  did  not
notify the finance center of the change  in  his  marital  status  and
spouse coverage was not established on his new spouse’s  behalf.   The
decedent died on 29 March 2002.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states the law in effect  at  the
time of the applicant’s divorce  did  not  allow  retired  members  to
provide SBP coverage to former spouses even if they wished to  do  so.
However, the member could have elected to change  spouse  coverage  to
the insurable interest type of former spouse coverage during the  one-
year period authorized by public law (PL) 98-94.  Subsequently he also
could have ensured her entitlement by electing former spouse  coverage
during the one-year period  authorized  by  PL  99-145;  however,  the
finance center has no record showing he submitted such a request.  The
facts of this case do not substantiate a reasonable expectation of the
former member’s intent to provide SBP coverage for the applicant.

DPPTR’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states she can understand the dispute  between  current  and
former spouses as long as there had been no distribution  of  benefits
as of the time of death.  She cannot  comprehend  beneficiaries  being
changed from one to another after the annuity had been fixed  and  had
started disbursing benefits.  Nor can she comprehend  the  ability  to
change beneficiaries after  one  has  been  receiving  benefits.   She
argues that she receives two  annuities  that  disallow  any  type  of
manipulation after the annuity has been fixed and benefits have begun.
 She states her attorney, at the time of  her  divorce,  drew  up  the
agreement based on the fact  that  once  the  annuity  was  fixed  and
benefits began, that no changes could be made to the beneficiary.

Regarding the laws made in 1982, 1982, and 1984 – how was she, as  the
original spouse, to know that she had until 1 October 1985 to  provide
a request for an election? She points to 1998 legislation indicating a
former spouse with a military record may  be  a  proper  claimant  and
should identify all former spouses whose husband had  already  retired
from the military and was already receiving benefits at  the  time  of
the divorce and who was named beneficiary

when the benefits were first established and fixed, is entitled to SBP
benefits.

She notes her former spouse’s pay records show  that  he  discontinued
SBP spouse coverage in 1978.  She has yet to receive a copy of his pay
records nor a copy  of  the  notice  to  terminate  benefits  that  he
supposedly filed, both of which she asked for.  She thanks  the  Board
for reopening her case on behalf of all the first wives  (widows)  who
need to be treated fairly now and in the future.

_________________________________________________________________

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  and
are sympathetic to her unfortunate situation; however, we  agree  with
the opinion and recommendation of the  Air  Force  office  of  primary
responsibility  and  adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice.  It appears the member had at least  two  opportunities  to
elect SBP coverage for his former spouse and yet did not do  so.   The
evidence of record  and  of  that  presented  to  the  Board  show  no
reasonable  expectation  of  his  intent  to  provide  said  coverage.
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-
2003-01168 in Executive  Session  on  24  September  2004,  under  the
provisions of AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Patricia D. Vestal, Member
      Mr. Michael K. Gallogly, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 6 May 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.
    Exhibit E.  Letter, Applicant, dated 3 Oct 03.



                                   ROSCOE HINTON, JR
                                   Panel Chair