RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2003-02252
            INDEX NUMBER: 137.01

      XXXXXXX    COUNSEL:  GRANT E. LATTIN

      XXXXXXX    HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show that on 6 November 1986,  he
changed his natural person with an insurable interest (NIIP) coverage  under
the Survivor Benefit Plan  (SBP)  to  former  spouse  coverage,  naming  his
former spouse as beneficiary; that he terminated his former spouse  coverage
on  9  April  1988  (date  of  former  spouse’s  remarriage),  or   in   the
alternative, 20 August 1988 (date of  his  remarriage);  and  on  20  August
1988, elected spouse coverage, naming the applicant as his beneficiary.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The Air Force failed to notify the member of his right to  convert  his  SBP
coverage from NIIP coverage to former spouse coverage.

Under an amendment to the  applicable  statute  members  were  permitted  to
convert their SBP  coverage  during  the  period  from  8 November  1985  to
7 November 1986.   In  past  cases,  the  Air  Force  has  relied  upon  the
presumption of  regularity  to  presume  that  SBP  notifications  occurred;
however, federal courts have permitted rebuttal  of  this  presumption  upon
the presentation of evidence that such notification was  not  received.   As
such, the burden is upon the Air Force to prove actual notification, and  if
such evidence is presented, the Air Force cannot rely on the presumption  of
regularity.  Had the member been properly notified, he would have  converted
his coverage to former spouse which would have permitted him to pay a  lower
premium and later terminate the  coverage  under  the  conditions  of  their
divorce decree.  Had this occurred, he would have  elected  to  provide  his
current spouse SBP coverage.

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

_________________________________________________________________



STATEMENT OF FACTS:

The member and his former spouse were married on 10 September  1958.   Their
20 August 1984 divorce decree  incorporated  the  terms  of  their  property
settlement, in which the member agreed to enroll his former  spouse  as  SBP
beneficiary until such time as she remarried  or  their  son  completed  his
college education, whichever came first.

Prior to his 1 March 1985 retirement, the member elected  coverage  for  his
former spouse under the insurable interest option.

Public Law 99-145 permitted members, who had  previously  elected  insurable
interest coverage for their former spouses, a one-year  opportunity  (8  Nov
85 - 7 Nov 86) to change to former spouse coverage with the same  costs  and
provisions of spouse coverage.  The statute  required  the  former  spouse’s
written concurrence in the change.

The member’s former spouse remarried on 9 April 1988.

The member and applicant were married on 20 August 1988.  He  had  until  20
August 1989 to notify DFAS of his remarriage and request  SBP  coverage  for
his current spouse.

In an application, dated 11 June 1996, the member  requested  conversion  of
his  SBP  election  from  insurable  interest  to  former  spouse   coverage
effective 6 November 1986.  However, he withdrew his request on  22  January
1998.

Upon the member’s death on 3 March 2003, his former spouse  began  receiving
an SBP annuity.

In an application, dated 3 July  2003,  the  applicant  requested  her  late
husband’s records be corrected to show that he changed  his  natural  person
with an insurable interest (NIIP) coverage under the Survivor  Benefit  Plan
(SBP) to former spouse coverage, naming his former  spouse  as  beneficiary;
that he terminated his former spouse coverage  on  9  April  1988  (date  of
former spouse’s remarriage), or in the alternative, 20 August 1988 (date  of
his remarriage); and that  on  20  August  1988,  elected  spouse  coverage,
naming her as his beneficiary.  Based on an AF/JAG opinion, dated  28  April
2000, she was advised that it would be inappropriate for the AFBCMR to  rule
on a dispute between two claimants to a  benefit  only  one  of  them  could
receive, without taking that benefit away from one of  them,  and  that  her
application had been administratively closed (Exhibit E).

Applicant filed action  with  the  United  States  District  Court  for  the
District of Columbia alleging the decision of the Executive Director of  the
AFBCMR to deny her request for correction of her husband’s military  records
was “arbitrary  and  capricious,  an  abuse  of  discretion,  not  based  on
substantial evidence, and otherwise contrary to law,” in  violation  of  the
Administrative Procedures Act (APA), 5 USC 701.  On 19 July 2004, the  court
concluded the Executive Director’s decision to deny applicant’s  application
was “arbitrary  and  capricious,  an  abuse  of  discretion,  not  based  on
substantial evidence, and otherwise contrary to law” because  that  decision
prevented the AFBCMR from engaging in a thorough review of her  application,
resulting in a deficient decision making process.  Therefore, the  case  was
remanded to the AFBCMR for further review (Exhibit G).

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPTR recommends the member’s records be corrected to  show  he  voided
his former spouse coverage and elected spouse coverage  on  the  applicant’s
behalf effective 19  November  1997  under  the  provisions  of  PL  105-85.
AFPC/DPPTR states, in part, that while there is no evidence of an  error  by
the Air Force, in the interest  of  justice,  they  recommend  relief.   The
member’s property settlement contained his agreement to  enroll  his  former
spouse as SBP beneficiary until such time as  she  remarried  or  their  son
completed his college education.  He elected coverage for his former  spouse
under the insurable interest option prior to his retirement and  his  former
spouse remarried on 9  April  1988.   Notwithstanding  the  terms  of  their
property settlement, the law does not permit termination of SBP coverage  in
the event the former spouse marries, or at  any  arbitrary  point  of  time.
Changes to the insurable interest coverage are limited; however, the  member
could have changed to former spouse  coverage  during  the  12-month  period
afforded by PL 99-145, or within the first year after he acquired a  spouse.
 On 26 August 2002, the member contacted their office and indicated  he  was
going to request his former spouse’s coverage  be  terminated  in  order  to
establish coverage for his wife; however, he submitted no application  prior
to his death.

The AFPC/DPPTR evaluation, with attachments, is at Exhibit C.

AF/JAA recommends the application  be  denied  and  states,  in  part,  that
applicant has not provided a persuasive basis for the  AFBCMR  to  determine
that an error or injustice has occurred.  Although there is  some  merit  to
the argument that by the terms of the  separation  agreement,  the  member’s
former spouse had given her consent for the  member  to  terminate  her  SBP
coverage when she remarried, the requirements of  Title  10,  United  States
Code Section 1450(f) have not been  fulfilled.   Specifically,  the  statute
requires court-approved modifications to the  divorce  decree  in  order  to
change SBP coverage.  Absent such approval, there is no legal authority  for
the Board to revise the current SBP beneficiary.  The terms of the  property
settlement do not take precedence over the specific provisions  of  the  SBP
statute.  Moreover, the 1985 change to the statute required  the  member  to
change  from  NIIP  coverage  to  former  spouse  coverage  no  later   than
8 November 1986; a deadline the member did not meet.  Further, there  is  no
authority in the statute to extend the  election  period  past  this  point.
Although the member’s intent was to provide SBP  coverage  for  his  current
spouse, an error or  injustice  has  not  occurred.   In  drafting  the  SBP
legislation, Congress made  the  deliberate  decision  to  require  a  court
approved change to the divorce decree before  an  existing  SBP  beneficiary
election could be modified.  In addition, the member’s  failure  to  receive
notification of the 1985 changes to the law does not amount to an  error  or
injustice because the Air Force was never under a legal duty to  notify  him
of his right to change his SBP coverage.

The AF/JAA evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The office responsible for administering the SBP on behalf of the Air  Force
has concluded that an injustice  has  occurred  and  recommends  the  AFBCMR
correct the member’s records to void his former  spouse  coverage  and  name
the applicant as the beneficiary.  While the AF/JAA opinion states  the  Air
Force had no legal duty to notify the member of the change in  law,  by  its
own admission, the Air Force attempted to send a  notice  to  every  retiree
affected by the change of law.  As noted in the Court’s opinion, in  signing
the property settlement agreement which was  incorporated  into  the  court-
approved divorce decree, the member’s former spouse agreed  to  receive  SBP
until she remarried, and in doing so, gave her consent  for  him  to  revoke
the SBP benefits in  compliance  with  federal  law.   Further,  the  AFBCMR
should consider the member’s many attempts over a period of nearly 15  years
to provide SBP benefits for his spouse.

Counsel’s complete response, with attachments, is at Exhibit J.

_________________________________________________________________

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.  Pursuant to the remand order of the United  States  District  Court  for
the District of Columbia, we  have  considered  the  application.   After  a
thorough  review  of  the  evidence  of  record  and  applicant’s   complete
submission, the majority of the Board is not  persuaded  the  applicant  has
been the victim of error or injustice.  In this  respect,  the  majority  of
the Board notes that the applicant is requesting a benefit someone  else  is
currently receiving.  Although the Board is sympathetic to  the  applicant’s
situation, a majority of the Board agrees with the AF/JAA (formerly  AF/JAG)
opinion that, even if legally empowered to do so, it would be  inappropriate
for the AFBCMR to render a decision that would take the  benefit  away  from
one claimant in order to give it  to  another.   To  do  otherwise,  in  the
opinion of the majority of the Board, would constitute an injustice  to  the
other claimant.  In view of this, AF/JAA has opined that the  AFBCMR  should
only grant the requested relief when a court of competent  jurisdiction  has
decided the matter in the favor of the claimant.  Since  there  is  no  such
court decision in this case, a majority  of  the  Board  finds  insufficient
evidence of error or injustice to warrant  favorable  consideration  of  the
application.

4.  Notwithstanding the above finding, a majority of the  Board  notes  that
based on the 1985 change in the law,  the  member  could  have  changed  his
coverage from NIIP  to  former  spouse,  provided  he  obtained  his  former
spouse’s concurrence and made  the  change  in  coverage  before  8 November
1986.  However, there is no evidence he took  such  action.   The  applicant
contends the member did not request a change in his SBP coverage  from  NIIP
to former spouse because, contrary to the statutory requirement  to  do  so,
the Air Force failed to notify him of the 1985 change in  law.   However,  a
14 March 1985 package was mailed to the address  where  the  member  resided
until his death, advising him of the  opportunity  to  change  to  the  less
expensive former spouse option and that such  a  change  would  require  his
former  spouse’s  concurrence.   Regardless,  although  the  Air  Force   is
required to notify a spouse of  a  member’s  election  for  less  than  full
coverage, there is no requirement to inform a member or his/her spouse of  a
change  to  the  statute.   Further,  since  there  was  no  court  approved
modification to the divorce decree regarding the SBP coverage,  as  required
by statute, a majority of the Board is not persuaded the Air Force erred  in
refusing to change his SBP  beneficiary  after  he  advised  DFAS  that  his
former spouse had consented to the termination of her coverage based on  the
terms of their property settlement.  To the  contrary,  a  majority  of  the
Board  notes  that  the  terms  of  the  property  settlement  do  not  take
precedence over the specific provisions of the SBP  statute.   Although  the
member submitted a 1996 request to change his coverage from NIIP  to  former
spouse, he withdrew the request in 1998,  apparently  based  on  his  former
spouse’s refusal to concur in  the  change,  and  never  again  pursued  the
issue.  The member again had an opportunity to change  his  coverage  within
the first year of marrying the applicant; however,  he  did  not  submit  an
application prior to his death.  In view of the above, and  in  the  absence
of evidence to the contrary, a majority of the Board does  not  believe  the
applicant has met her burden of establishing that she has  been  the  victim
of an injustice.  Hence, a majority of the Board finds no  compelling  basis
to recommend granting the relief sought.





5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

The majority of the Board finds insufficient evidence of error or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-02252
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

By majority vote, the Board recommended  denial  of  the  application.   Mr.
Gallogly voted to correct the records and has submitted  a  minority  report
which is attached at Exhibit K.   The  following  documentary  evidence  was
considered:

    Exhibit A.  DD Form 149, dated 3 Jul 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 8 Aug 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Aug 03.
    Exhibit E.  Certificate, Applicant, dated 27 Aug 03.
    Exhibit F.  Letter, AFBCMR, dated 4 Sep 03, w/atch.
    Exhibit G.  Remand Order, dated 19 Jul 04.
    Exhibit H.  Letter, AF/JAA, dated 20 Sep 04.
    Exhibit I.  Letter, AFBCMR, dated 24 Sep 04.
    Exhibit J.  Letter, Counsel, dated 21 Oct 04, w/atch.
    Exhibit K.  Minority Report, dated 23 Feb 05.




                                   MICHAEL K. GALLOGLY
                                   Acting Panel Chair


AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD  20762-7002



Dear Applicant

      Reference your application submitted under the provisions of AFI 36-
2603  (Section 1552, 10 USC), AFBCMR Docket Number BC-2003-02252.

      After careful consideration of your application and your late
husband’s military records, the majority of the Board determined that the
evidence you presented did not demonstrate the existence of probable
material error or injustice.  The Secretary's designee accepted the
recommendation of the majority and denied your application.

      You have the right to submit newly discovered relevant evidence for
consideration by the Board.  In the absence of such additional evidence, a
further review of your application is not possible.

      BY DIRECTION OF THE PANEL CHAIR




                                        ROSE M. KIRKPATRICK
                                        Chief Examiner
                                        Air Force Board for Correction
                                        of Military Records

Attachment:
SAF/MRB Letter, w/Record
 of Board Proceedings





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:    AFBCMR Application of XXXXXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  The majority of the Board found that
applicant had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.





                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                     CORRECTION OF MILITARY RECORDS

SUBJECT:  XXXXXXX, BC-2003-02252

      The majority of the Board recommends the applicant’s request be
denied.  However, in view of the circumstances in this case, and noting the
favorable recommendation from the office responsible for administering the
Survivor Benefit Plan (SBP), I recommend the member’s records be corrected
to show that he voided his former spouse coverage and elected spouse
coverage on the applicant’s behalf.

      The applicant and his former spouse divorced on 20 August 1984.
Prior to his 1 March 1985 retirement, and under the terms of the property
settlement incorporated in their divorce decree, he elected SBP coverage on
his former spouse’s behalf until such time as she remarried or their son
completed his college education.  At the time of his retirement, he chose
the only option available to provide SBP coverage for a former spouse - the
insurable interest provision.  He had an opportunity to change to the less
expensive former spouse option during the one-year period authorized by
Public Law 99-l49 (8 November 1985 - 7 November 1986); however, he did not
request a change to his coverage during this period.  I believe it is
apparent that he was obviously unaware that he had the opportunity to
change to the less expensive former spouse option.  I find no reason why he
would not have taken action to insure he paid the lowest premium possible.
Further, his former spouse had consented to the termination of her coverage
based on the terms of their property settlement.  I believe the property
settlement meets the statutory requirement for a court-approved
modification to the divorce decree prior to changing SBP coverage.

      It is unfortunate that, in cases of this nature, wherein the Board
must rule on a dispute between two claimants to a benefit only one of them
can receive, the corrective action ultimately results in taking a benefit
away from one of the claimants.  However, this should not prevent this
Board from taking the necessary action to correct an error or remedy an
injustice on an application properly brought before it.  The courts have
held that correction boards have an abiding moral sanction to determine,
insofar as possible, the true nature of an alleged injustice and to take
steps to grant thorough and fitting relief.

      In view of the member’s clear intent to take the necessary action to
insure his current spouse was covered under the SBP, I strongly believe the
applicant has met her burden of proof that her late husband’s records are
in error and unjust.  Therefore, based on a totality of the evidence
presented, I believe the interest of justice can best be served by
resolving this issue in the applicant’s behalf.

      Based on the foregoing, I recommend the member’s records be corrected
to entitle the applicant to an SBP annuity.




                                        MICHAEL K. GALLOGLY
                                        Member