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AF | BCMR | CY2004 | BC-2004-00611
Original file (BC-2004-00611.doc) Auto-classification: Approved

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00611
            INDEX CODE:137.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

After his divorce, he mailed his divorce decree to the Denver office but  it
was returned unopened.  By the time he received his returned  mail,  it  was
more than a year after his divorce.  He remarried on 1  September  1990  and
rather than have his SBP go to no one, he elected to have his  present  wife
listed as the beneficiary.  Until recently, he assumed  that  if  he  should
die, the  SBP  beneficiary  could  be  easily  changed.   His  attorney  has
recommended that he do everything possible to get his records  corrected  so
his family will avoid an expensive legal case.

In support of his appeal, applicant submits a  personal  statement  cosigned
by his current spouse, a copy of his divorce decree, a copy of  his  retiree
account statement and a copy of his SBP Election  Statement  dated  1  March
2004.  The applicant’s submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database reflects the applicant retired  effective  1
April 1974 in the grade of lieutenant colonel.

The remaining relevant facts pertaining to this application, extracted  from
the applicant's military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states that the applicant and former spouse were  married  on  25
June 1955 and he elected spouse and child coverage based on a reduced  level
of retired pay prior to his 1 April 1974 retirement.  The  parties’  divorce
was finalized on 8 May 1989 and the property agreement, incorporated in  the
divorce decree, contained the applicant’s agreement to designate the  former
spouse as his beneficiary under the SBP.  However, neither  party  submitted
a valid former spouse election and spouse premiums continued to be  deducted
from the applicant’s retired  pay  until  December  1989  when  the  finance
center became aware of the divorce, retroactively suspended spouse  coverage
and refunded overpaid premiums.  AFPC/DPPTR states there is no  evidence  of
an Air  Force  error;  however,  to  preclude  a  possible  injustice,  they
recommend the member’s record be corrected to reflect that on 9 May 1989  he
elected former spouse coverage based on a reduced level of retired pay.

AFPC/DPPTR evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 June 2004, a copy of the Air Force evaluation and  HQ  USAF/JAA  legal
reviews were sent to the applicant for review and comment.

On 21 July 2004, this office received a  letter  from  the  former  spouse’s
counsel stating that on 27 July 1989, he sent a copy of the  Divorce  Decree
and Property Settlement Agreement to the Air  Force.   As  he  recalls,  the
request that the applicant’s beneficiary under the SBP shall be  the  former
spouse was favorably received.   A  copy  of  the  counsel’s  letter  is  at
Exhibit E.

_________________________________________________________________

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  that  the  former  spouse  should
receive the SBP annuity at the reduced level of retired pay to  comply  with
the divorce decree awarding the asset to her by  the  court.   We  note  the
current spouse has provided a signed statement  of  agreement  relinquishing
her entitlement to the SBP.  We are persuaded it was the applicant’s  intent
to provide his former spouse the SBP annuity and that his current spouse  is
fully  aware  she  is  relinquishing  her  entitlement   to   the   annuity.
Therefore, the Board 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  9  May  1989,  he  changed  his
Survivor Benefit Plan (SBP) election from spouse to former  spouse  coverage
based on a reduced level of retired pay,  naming  XXXXXXXXX  as  the  former
spouse beneficiary.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 July 2004 and 26 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 for AFBCMR  Docket  Number  04-00611  was
considered:

    Exhibit A.  DD Form 149, dated 17 Feb 04, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 17 Mar 04.
    Exhibit C.  Letter, AFBCMR, dated 18 Jun 04, w/atchs.
    Exhibit D.  Letter, Former spouse’s counsel, dated 16 Jul 04,
                w/atchs.





                                             ROSCOE HINTON JR.
                                             Panel Chair
 AFBCMR BC-2004-00611












 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 xxxxxxxxxxxxx, be corrected to show that on 9 May 1989, he
 changed his Survivor Benefit Plan (SBP) election from spouse to former
 spouse coverage based on a reduced level of retired pay, naming XXXXXXXX as
 the former spouse beneficiary.








                                              JOE G. LINEBERGER

            Director

      Air Force Review Boards Agency


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