RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01757
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken to enable her to receive a Survivor Benefit
Plan (SBP) annuity payment.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force is in breach of contract, as it did not notify her  that
SBP had changed.  Further, she states the Air Force  is  negligent  in
that they did not answer her query  regarding  changes  to  SBP.   She
states she was the beneficiary of the now  deceased,  former  members’
SBP election from his retirement in 1971 to their divorce in 1981.   A
great deal of money has been invested in the plan for  which  she  was
intended to benefit.

In support of her appeal, the applicant has  provided  copies  of  her
deceased spouse’s death certificate, several pieces of  correspondence
between her and the Defense Finance and Accounting Service (DFAS), and
a marriage certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased former member and the applicant were married on  6 August
1955.   He  elected  spouse  and  child  coverage  under  the  Retired
Serviceman’s Family Protection Plan (RSFPP) prior to his retirement on
1 May 1971.  During SBP’s initial enrollment period he elected  spouse
only coverage based on full, retired pay.  On the  effective  date  of
their  divorce,  19  November  1981,  RSFPP  and  SBP  coverage   were
suspended.  The decedent elected  former  spouse  coverage  under  the
insurable interest option during the  open  enrollment  following  the
implementation of public law (PL) 98-94.  The decedent remarried on  7
May 1988 and converted  his  insurable  interest  coverage  to  spouse
coverage  for  his  current  spouse.   His  current  spouse  has  been
receiving SBP annuities since his death on 12 March 2003.
AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.   DPPTR  states  that  even  though  the
Defense Finance and Accounting Service (DFAS)  failed  to  notify  the
applicant of the change in her SBP status, there is  no  provision  in
the statute that indicates such failure to notify  the  former  spouse
voids an otherwise  valid  election.   DPPTR  states  the  applicant’s
contention that a lot of money was invested  in  the  plan  which  was
meant to benefit her is without merit.  Until October 1983, there  was
no provision to extend coverage to a former spouse.   Her  claim  that
she relinquished her claim to SBP because the  decedent  told  her  he
could no  longer  afford  the  payment  has  not  been  substantiated.
Additionally, while there is no evidence the decedent took any  action
to change his SBP election to favor his former spouse, the record does
show valid action on his part to make  sure  his  current  spouse  was
covered.

DPPTR’s complete evaluation is at Exhibit C.

On 6 August 2004, the Board staff provided the applicant  with  copies
of advisory opinions from the Office of the Judge Advocate General  on
similar cases that would be provided to the  Board  for  consideration
(Exhibit E).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends her former spouse employed deception when he  asked
her to relinquish any claim to an SBP annuity  due  to  his  assertion
that he was no longer able to afford the coverage.  Her daughters have
included statements substantiating the deception.  She  wrote  to  the
Air Force and asked about changes to the plan but her letter was never
answered.  She notes 10 United States Code  (U.S.C.)  1450(f)(1)  that
states in all cases, the Air Force is required to  notify  the  former
spouse of any changes in SBP election.  The Air Force did  not  answer
her letter nor did they meet the one-year time frame to notify  former
spouses of changed elections as required by 10 U.S.C. 1450(f)(3).  Her
daughters confirm their father told them that  their  mother  remained
the SBP beneficiary.  The applicant contends it is beyond common sense
to think she would have voluntarily relinquished her  benefit  to  his
current wife who had no vested interest in the plan and did  not  know
of the plan’s existence until years after his retirement from the  Air
Force.

She  notes  the   JAA   advisories’   comment   concerning   mandatory
notification of any election changes where  JAA  states  “However,  no
such notification requirement exists with regard to  former  spouses.”
She takes issue with that statement and provides a document she signed
in November 1984, which mandates notification to an ex-spouse when any
changes are made to the plan.  She states that  for  the  military  to
dismiss as inconsequential, their responsibility to notify her of  any
change to the plan as incomprehensible as  her  financial  well  being
depended on being fully informed.  She prays that current  spouses  of
military members will not receive the same shameful treatment from the
military should they find themselves  ex-spouses,  particularly  those
who have been directly involved in the military member’s assignment to
war zones.

Applicant’s complete response, with attachments, is at Exhibit F.

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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;
however, we agree with the opinion and the recommendation of  USAF/JAA
and adopt  their  rationale  as  the  basis  for  our  conclusion  the
applicant has not been the victim of an error or  injustice.   Neither
the servicemember nor the former spouse  submitted  a  valid  election
within the one-year period required by law to establish former  spouse
coverage.  While we are not unsympathetic to the applicant’s  dilemma,
at this time she is not the legal beneficiary of the SBP  entitlement.
However,  if  the  decedent’s  current  spouse  provides  a  notarized
statement relinquishing her entitlement to the SBP annuity, the  Board
would be willing  to  reconsider  this  request.   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-
2003-01757  in  Executive  Session  on  2  December  2004,  under  the
provisions of AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Michael K. Gallogly, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 May 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 20 Jun 03.
    Exhibit D.  Letter, SAF/MRBR, dated 27 Jun 03.
    Exhibit E.  Letter, AFBCMR, dated 6 Aug 04, w/atchs.
    Exhibit F.  Letter, Applicant, dated 13 Aug 04.



                                   ROSCOE HINTON, JR.
                                   Panel Chair