RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01922
            INDEX CODE: 137.00, 137.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO



_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse and child
as his beneficiaries for his Reserve Component Survivor  Benefit  Plan
(RCSBP).
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was incorrectly counseled to change his original election of former
spouse and child coverage to former spouse only coverage.

In support of his request, the applicant submits copies of letters  he
sent to DFAS, DD Form 2556 (Data for Payment  of  Retired  Personnel),
ARPC Form 64 (Reserve Component Survivor Benefit Plan Election Change)
and ARPC  Form  0-14  (RCSBP  Election  Statement  for  Former  Spouse
Coverage).  The applicant’s complete submission, with attachments,  is
at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS)
reveals that, on 16 July 2001, the applicant’s name was placed on  the
retired Reserve list. He had completed a total of 24 years, 11  months
and 10 days of satisfactory Federal service.

Information extracted from the  Automated  Records  Management  System
(ARMS) reveals the following.  The applicant’s 28 September 1997 RCSBP
Election Certificate reflects his spouse as B--, former spouse as J---
and dependent child as K---, with an  election  of  spouse  and  child
coverage.  His 25 October 2000 Divorce Decree orders B--- as the “sole
beneficiary  of  the  Armed  Services  Survivor  Benefit  Plan.”   The
applicant’s RCSBP Election Change, ARPC  Form  64,  dated  26 November
2000, and the RCSBP Election Statement  for  Former  Spouse  Coverage,
ARPC Form 0-14, reflect his former spouse as “B---” with no indication
of having dependent children.

On 16 July 2003, the  applicant  requested  that  his  application  be
withdrawn.  By letter, dated 18 December 2003, the applicant requested
that his appeal be reopened for consideration by the Board.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPS recommends the application be denied.  DPS states that the
applicant was eligible to participate in the RCSBP on  24 April  1997.
He made an election for Option C, an Immediate Annuity for his  spouse
and child on 28 September 1997.  He was divorced on 21 September  2000
and his election was then suspended.  The applicant  did  not  make  a
former spouse election within one year of his divorce.  Public Law 99-
145 stipulates that the former spouse has one year from  the  date  of
the  divorce  in  which  to  process  a  “deemed  election”  to  DFAS.
Noncompliance within the provisions of the  law  excludes  the  former
spouse from all future SBP entitlements.  The applicant nor his former
spouse complied with the  law.   The  HQ  ARPC/DPS  evaluation  is  at
Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  11
July 2003 for review and response.  As of this date, no  response  has
been received by this office (Exhibit D).
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the  Board’s  request  for  further  review,  HQ  ARPC/DPS
provided the following amended advisory opinion.

HQ ARPC/DPS recommends the application be denied.  DPS indicates  that
when the applicant accomplished his DD Form 2656, Data for Payment  of
Retired Personnel, for his benefits at age 60, in Section 26, Block C,
he requested children only coverage.  Their legal  department  states,
“Assuming there has  been  no  change  to  the  final  divorce  decree
contained in Atch 2, his sole SBP beneficiary should be B--.  Title 10
USC, Section 1450, prohibits a change in the beneficiary  when  former
spouse coverage is mandated by a court order without  the  consent  of
the former spouse.  B---  would  have  to  waive  her  rights  to  SBP
coverage.”  The  HQ  ARPC/DPS  evaluation,  with  attachments,  is  at
Exhibit E.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the  advisory  opinion  and  requests  that  an
injustice be corrected.  His daughter, K---, is blind and handicapped.
 His detailed statement of  the  circumstances  relating  to  his  SBP
election is at Exhibit G.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit G.
_________________________________________________________________

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.  After careful  consideration  of
applicant’s request and the evidence of  record,  we  agree  with  the
opinion and  recommendation  of  the  appropriate  office  of  primary
responsibility (Exhibit E) and adopt their rationale as the basis  for
our  conclusion  that  the  applicant  has  failed  to  establish  the
existence of probable error or injustice.  In  this  respect,  we  are
constrained to note that the applicable statute (10 USC, Section 1450)
“prohibits a change in the beneficiary when former spouse coverage  is
mandated by court order without the consent  of  the  former  spouse.”
The applicant’s divorce decree clearly directed the applicant to elect
former spouse SBP coverage.  We also note that a deemed  election  was
made within the one-year requirement by applicant’s former spouse, B---
, which makes it a valid election.  While we are not unsympathetic  to
the applicant’s situation, should he  provide  a  notarized  statement
from his former spouse relinquishing her entitlement to the  SBP;  or,
if a court of competent jurisdiction determines that his  daughter  is
entitled to the SBP benefits claimed, this Board would be  willing  to
review the documents for possible reconsideration.  Otherwise, in view
of the foregoing, 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  this  application  in
Executive Session on 20 July 2004, under the  provisions  of  AFI  36-
2603:

                  Mr. Roscoe Hinton Jr., Panel Chair
                  Mr. Joseph A. Roj, Member
                  Mr. Michael J. Novel, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2003-01922.

   Exhibit A.  DD Form 149, dated 31 May 03, w/atchs and
               Letters, dated 16 Jul 03 and 18 Dec 03.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/DPS, dated 3 Jul 03.
   Exhibit D.  Letter, SAF/MRBR, dated 11 Jul 03.
   Exhibit E.  Letter, HQ ARPC/DPS, dated 29 Mar 04, w/atchs.
   Exhibit F.  Letter, 1 Apr 04.
   Exhibit G.  Letter from Applicant, dated 29 Apr 04, w/atchs.




                                   ROSCOE HINTON JR.
                                   Panel Chair