RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-04283
            INDEX CODE:137.00

            COUNSEL:  None

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse  coverage
under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He nor his former spouse realized a beneficiary change  needed  to  be
made within one year of their divorce.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was married to J. on 27 December 1986.   The  applicant,
prior to his 1 September 1998 retirement, elected spouse only coverage
based on full retired pay.  The applicant and J. were divorced  on  20
July 2000, and the divorce decree awarded former spouse coverage to J.
 There is no indication in the records that either the applicant or J.
submitted a request to change the SBP coverage from spouse  to  former
spouse within the one-year time period.  The  applicant  and  S.  were
married on 6 July 2002.  The applicant notified  the  Defense  Finance
and Accounting Service (DFAS) of the change in his marital status  and
requested SBP coverage be established on his current wife’s behalf.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states that a spouse's eligibility as  an  SBP  beneficiary
terminates upon divorce.  There are two mechanisms
provided by law for  changing  SBP  coverage  from  spouse  to  former
spouse, and both must be exercised within the first year following the
divorce.  The servicemember can file an election change or the  former
spouse can request that the change  be  made  on  their  behalf.   The
former  spouse  upon  requesting  the   change   must   submit   legal
documentation that the servicemember  agreed  to  or  that  the  court
ordered the servicemember to establish former spouse coverage.  If  an
election is not made during the one-year  eligibility  period,  former
spouse coverage may not be established thereafter.

DPPTR recommends the applicant’s records be corrected  to  reflect  he
elected to change his  SBP  coverage  from  spouse  to  former  spouse
coverage based on  full  retired  pay,  naming  J.  as  former  spouse
beneficiary.

A complete copy of the Air Force evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 6 February 2004, for review and  response.   As  of  this
date, no response has been received by this office.

On 18 February 2004, the Board staff forwarded the applicant a copy of
a memorandum from  HQ  USAF/JAA,  which  will  be  considered  in  the
processing of his application (Exhibit D).

The applicant reviewed the JAA advisory and states this advisory  does
not support his request to have his records  changed  to  reflect  his
former spouse as his SBP beneficiary.  He has worked in positions that
required him to teach, instruct, investigate and lead with the idea of
always doing the right thing.  He regards a legal  opinion  as  simply
that, an opinion.  The legal opinion was considered  in  his  decision
making process, but he based his decision on all (emphasis added)  the
facts as they pertained to each specific situation.  He  believes  the
right thing to do is for the Board to grant his request (Exhibit E).

On 16 April 2004, the applicant’s spouse signed a notarized  statement
relinquishing her entitlement to the SBP annuity (Exhibit F).

On 30 April 2004, the Board staff forwarded the applicant a copy of  a
memorandum  from  HQ  USAF/JAA,  which  will  be  considered  in   the
processing of his application (Exhibit G).

_________________________________________________________________

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 an 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  the
opinion of the Board majority that the former spouse  should  receive
the SBP annuity at the maximum level of retired pay  to  comply  with
the divorce decree awarding the asset  to  her  by  the  court.   The
majority notes the current spouse has provided a notarized  statement
relinquishing her entitlement to the SBP.  The majority is  persuaded
it was the applicant’s intent to provide his former  spouse  the  SBP
annuity and is satisfied his current spouse is  fully  aware  she  is
relinquishing her entitlement to the annuity.  Therefore,  the  Board
majority accepts the opinion and recommendation from  the  Air  Force
and recommends 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 on 21 July  2000,  he
elected under the Survivor Benefit Plan to change  his  coverage  from
“spouse”  to  “former  spouse,”  naming           as   former   spouse
beneficiary, based on full retired pay.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-04283 in Executive Session on 14 April  2004  and  18 June  2004,
under the provisions of AFI 36-2603:

                       Mr. Roscoe Hinton, Jr., Panel Chair
                       Mr. Michael J. Novel, Member
                       Ms. Kathy L. Boockholdt, Member

By majority vote, the Board recommended granting the application.  Ms.
Boockholdt voted to deny correcting  the  records  but  she  does  not
desire  to  submit  a  Minority  Report.   The  following  documentary
evidence was considered:

      Exhibit A. DD Form 149, dated 7 Oct 03, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 30 Jan 04.
      Exhibit C. Letter, SAF/MRBR, dated 6 Feb 04.
      Exhibit D. Letter, AFBCMR, dated 18 Feb 04, w/atch.
      Exhibit E. Letter, Applicant’s Response, dated
                       1 Mar 04, w/atch.
      Exhibit F. Spouse statement, dated 16 Apr 04.
      Exhibit G. Letter, AFBCMR, dated 30 Apr 04, w/atch.




                             ROSCOE HINTON, JR.
                             Panel Chair






AFBCMR BC-2003-04283






MEMORANDUM FOR THE CHIEF OF STAFF

      Under the authority of Section 1552, Title 10, United States
Code, Air Force Instruction 36-2603, and having assured compliance
with the provisions of the above regulation, the decision of the Air
Force Board for Correction of Military Records is announced, and it
is directed that:

      The pertinent military records of the Department of the Air
Force relating to              , be corrected to show that on 21
July 2000, he elected under the Survivor Benefit Plan to change his
coverage from “spouse” to “former spouse,” naming                as
former spouse beneficiary, based on full retired pay.




                 JOE G. LINEBERGER
                 Director
                 Air Force Review Boards Agency