RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03233
            INDEX CODE: 137.00, 137.01

            COUNSEL:  MR. GUY J. FERRANTE

            HEARING DESIRED:  YES


_________________________________________________________________

This application for  correction  of  the  records  of  APPLICANT  was
submitted by Mrs. L. A. --- (former spouse).


APPLICANT REQUESTS:

Corrective action showing that the former member elected former spouse
coverage rather than spouse coverage under the Survivor  Benefit  Plan
(SBP).
_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states that, prior to the former member’s retirement from  the
Air Force, he elected SBP coverage for  “spouse  and  child.”   On  29
December 1983, the member and applicant  divorced  and  their  divorce
decree incorporated a settlement agreement wherein the applicant would
receive “all (100%) of the Husband’s Survivor  benefits  that  can  be
paid to a former spouse.”  The Defense Finance and Accounting  Service
(DFAS) was not notified to change the existing SBP spouse coverage  to
former spouse coverage, naming L-- as the beneficiary.

The former member married S-- in November 1994 and SBP  premiums  were
continuously deducted from the former member’s retirement pay until he
passed away on 17 July 2004.  Since the former member’s SBP  paperwork
still provided for “spouse” coverage, his spouse was  technically  the
beneficiary.

On 22 September 2000, the applicant initially applied to the Board  to
have the SBP election  changed  to  former  spouse;  however,  it  was
returned to her without prejudice.  The applicant was provided a  copy
of a HQ USAF/JAG opinion.  With regard to  the  JAG  opinion,  counsel
claims that a “court of competent jurisdiction” already has determined
the applicant’s entitlement to the SBP benefits she seeks -- when  the
Circuit Court incorporated the Settlement  Agreement  into  the  Final
Decree of Divorce.   S--  (the  technical  SBP  beneficiary)  formally
foregoes any interest in  any  SBP  annuity  on  the  former  member’s
account.  This magnanimous act is consistent with the  fact  that  S--
has not applied for SBP payments since the former member’s death,  and
corroborates that all understood the former member’s intent  that  the
applicant be the beneficiary of that annuity.

Neither the applicant nor the former member knew that any  affirmative
action  was  required  in  order  to  maintain  her  pre-existing  SBP
coverage.  S--’s  waiver  should  resolve  the  concern  expressed  by
USAF/JA without the need for additional  and  costly  litigation,  and
allow this Board to honor the former member’s intent that  his  former
spouse be his SBP beneficiary.

Counsel states that, if the technical requirements of the SBP had been
known, either the applicant or the former member would certainly  have
notified the Air Force to change the coverage from “spouse” to “former
spouse.”  The issue now is whether such notification should be  deemed
to have been made.  Technicalities should  not  overshadow  propriety;
injustice should not be swept under the rug.  This is not a case where
granting the applicant’s request would frustrate the  former  member’s
wishes or interfere with Shirley’s legal right to benefits.

In  support  of  her  request,  the  counsel  submits  a  Brief,  with
attachments.  The complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant was married to L-- on  16  March  1958.   Prior  to  his
1 September 1974 retirement, he  elected  spouse  and  child  coverage
based on a reduced level of retired pay.  The applicant and  L--  were
divorced on 29 December 1983 and the property settlement contained the
former member’s agreement to irrevocably maintain SBP coverage on  the
applicant’s behalf.  There is no indication in the records that either
the former member or the applicant submitted a request to  change  the
SBP coverage from spouse and child to former spouse  within  the  one-
year time period.  The former  member  and  S--  were  married  on  26
November 1994.  There is no indication the applicant notified DFAS  of
the change in his marital status  or  requested  an  election  on  his
current wife’s behalf.  The former member passed away on 17 July 2003.
 The former member’s widow signed a waiver and release of SBP benefits
on 20 Jan 04.

On 25 November 2003, the applicant was informed that  her  application
was being returned, without prejudice, based on a memorandum  from  HQ
USAF/JAG, dated 28 April 2000.  She was  advised  to  reapply  to  the
Board if a court determined she was entitled to the SBP benefits.
_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFPC/DPPTR recommends the application be  approved.   DPPTR  states
that premiums were continuously  deducted  from  the  former  member’s
retired pay until his death.  The member’s  willingness  to  accept  a
reduction in his retired pay for over 19  years  after  their  divorce
confirms the applicant’s claim that he intended she receive  the  SBP.
There is no evidence of Air Force error  in  this  case;  however,  to
preclude a possible injustice, DPPTR recommends  the  former  member’s
record be corrected to reflect  his  spouse  coverage  was  suspended,
effective 29 December 1983, and on 1 March 1986, he elected to  change
SBP spouse and child to former spouse coverage based on  the  previous
reduced level of retired pay, naming L-- as the eligible  beneficiary.
Approval should be contingent upon recoupment of appropriate premiums.
 The HQ AFPC/DPPTR evaluation is at Exhibit C.


Pursuant to the Board’s request, HQ USAF/JAA  provided  the  following
advisory opinion.

HQ USAF/JAA recommends the application be  denied.   JAA  states  that
because neither the former member nor the applicant provided DFAS with
a written request for former spouse SBP coverage within  the  one-year
deadline, there has  been  no  “deemed  election”  for  SBP  benefits.
Contrary to Counsel’s argument that a “court of competent jurisdiction
already has determined L--’s entitlement  to  the  SBP  benefit,”  the
courts that have addressed this very issue have  uniformly  held  that
the  one-year  election  provision  mandated  by  10  U.S.C.,  Section
1450(f)(3)  is  to  be  strictly  construed.   Even  if  the   retiree
intentionally violates the court order to provide coverage and is held
in contempt, the courts have refused to disregard the strict  one-year
deadline.

JAA states the former member failed to notify DFAS of  his  change  in
marital status and did not make an election to provide  former  spouse
coverage to his first wife.  The record indicates that  the  applicant
did not file  a  timely  election  with  DFAS  seeking  former  spouse
benefits.  Consequently, her right to seek  SBP  coverage  lapsed  one
year after the divorce decree was signed.  By operation  of  law,  S--
became the lawful SBP beneficiary on the first  anniversary  of  their
marriage and she has a lawful right to the SBP benefits.   While  this
turn of events may not reflect the intent of either the former  member
or the applicant with regard to SBP benefits, it can  be  persuasively
argued that there has been no error or injustice in this case.

With regard to the widow’s  offer  to  relinquish  her  SBP  benefits,
allowing the applicant to be named beneficiary in her  place,  despite
the widow’s gesture, there is no provision within the SBP  legislation
for a beneficiary to transfer his or her benefits to another.  By law,
without a deemed election-taking place, Shirley’s SBP benefits  vested
one year after she married the former member.  While she may certainly
decide not to apply for or accept SBP payments, she is not at  liberty
to direct that those payments be made to an unauthorized individual.

Although not raised, JAA comments on the  issue  of  whether  the  Air
Force was required to notify the former spouse that the member had not
filed the appropriate paperwork with DFAS to  entitle  her  to  former
spouse status.  The SBP legislation contains a number of instances  in
which the  military  service  must  notify  a  spouse  concerning  SBP
benefits; however, no such notification requirement exists with regard
to former spouses.

In JAA’s opinion, there is no error and arguably no injustice  to  one
who failed to comply  with  the  requirements  of  the  law.   The  HQ
USAF/JAA evaluation is at Exhibit D.
_________________________________________________________________

COUNSEL’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel  reviewed  the  advisory  opinions  and  indicates  that   the
applicant has expressly acknowledged the lack of any legal “error”  on
the part of the Air Force.  Her application is based solely  upon  the
injustice of what has transpired.  HQ  AFPC/DPPTR  agreed  in  its  27
October 2003 advisory opinion.  Counsel references other  cases  where
the military correction boards have agreed.  It is  manifestly  unjust
for the applicant to be denied the support the former member intended,
she expected and a court ordered -- simply because the Air  Force  did
the bare minimum that was expected of it.  JAA misconstrues the import
of the widow’s statement.  In it, she does not seek  to  “transfer…her
benefits to another”  or purport to “direct  that  [SBP]  payments  be
made to an unauthorized individual.”  Instead, S-- simply resolves the
“dispute  between  two  claimants”  that  dissuaded  this  Board  from
granting relief in 2003.  Now that that impediment has been removed by
S--’s renunciation of SBP benefits in  favor  of  the  applicant,  JAA
offers a new and different  reason  why  the  former  member’s  intent
should  not  be  honored.   The  former  member’s  records  should  be
corrected to provide the applicant with the SBP benefits that all know
he intended her to receive.  Counsel’s response is 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 error or 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 our opinion  that  the
former spouse should receive the SBP annuity at the reduced  level  of
retired pay to comply with the divorce decree and settlement agreement
awarding the asset to her  by  the  court.   We  note  the  widow  has
provided a notarized statement relinquishing her  entitlement  to  the
SBP.  We are persuaded by the  evidence  presented  that  it  was  the
applicant’s intent to provide his former spouse the  SBP  annuity  and
satisfied that his widow is  fully  aware  she  is  relinquishing  her
entitlement to the annuity.  Therefore,  we  accept  the  opinion  and
recommendation  from  HQ  AFPC/DPPTR  and  recommend  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:

      a.  On 29 December 1983, the  spouse  portion  of  his  Survivor
Benefit Plan coverage was suspended.

      b.  On 1 March 1986, he elected under the Survivor Benefit  Plan
to change his coverage from “spouse and  child”  to  “former  spouse,”
naming L-- A. --- as  former  spouse  beneficiary,  based  on  reduced
retired pay.
_________________________________________________________________

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

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary  evidence  was  considered  in  connection  with
AFBCMR Docket Number BC-2003-03233.

   Exhibit A.  DD Form 149, dated 13 Feb 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPTR, dated 27 Oct 03.
   Exhibit D.  Letter, HQ USAF/JAA, dated 20 Apr 04.
   Exhibit E.  Letters, SAF/MRBR, dated 7 Nov 03, and AFBCMR,
                        dated 26 Apr 04.
   Exhibit F.  Letter from Counsel, dated 25 May 04, w/atchs




                                   ROSCOE HINTON JR.
                                   Panel Chair



AFBCMR BC-2003-03233




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that:

            a.  On 29 December 1983, the spouse portion of his
Survivor Benefit Plan coverage was suspended.

            b.  On 1 March 1986, he elected under the Survivor Benefit
Plan to change his coverage from “spouse and child” to “former
spouse,” naming L--- A. ---- as former spouse beneficiary, based on
reduced retired pay.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency