RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00978
            INDEX CODE:137.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former late-husband’s records be corrected to reflect  he  made  a
timely election for former spouse coverage under the Survivor  Benefit
Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The divorce decree ordered the servicemember to provide former  spouse
coverage for her under the SBP, but neither the servicemember nor  she
was aware of the one-year requirement to submit an election for former
spouse coverage.

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

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STATEMENT OF FACTS:

The servicemember and the applicant were married on 7 July 1962.   The
servicemember, prior to his 1 November 1982  retirement,  elected  SBP
spouse and child coverage based on full retired  pay.   The  applicant
and the servicemember were divorced on 15 July 1985  and  the  marital
settlement agreement which was  incorporated  in  the  divorce  decree
reflects the servicemember’s willingness to maintain the  survivorship
option on the applicant’s behalf.  Neither the servicemember  nor  the
applicant made an election for former spouse coverage within  one-year
following their divorce.  The servicemember married D. on 26 September
1992 and did not establish SBP coverage for her.  In  July  2001,  the
servicemember requested  the  finance  center  to  change  his  spouse
beneficiary to D.  The servicemember died on  2  February  2004.   The
servicemember’s widow (D.) is receiving the SBP annuity.

The applicant submitted a DD Form 149 dated 8 March  2004,  requesting
her former late-husband’s records be corrected to reflect  he  elected
former spouse coverage on her behalf.  On 19 May 2004, Air Force Board
for Correction of  Military  Records  (AFBCMR)  returned  the  request
without action to the applicant on the basis the AFBCMR cannot rule on
a disputed claim to  a  benefit  that  only  one  person  can  receive
(Exhibit D).

AFBCMR further advised the applicant to seek  resolution  through  the
courts.  However, upon further review of the request, the  applicant’s
case was reopened (Exhibit E).

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AIR FORCE EVALUATION:

AFPC/DPPTR indicates that since the request involves two potential SBP
beneficiaries, no recommendation is provided.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

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

On 19 May and 28 July 2004, the Board staff  forwarded  the  applicant
copies of memorandums from HQ USAF/JA and  AFPC/DPPTR  which  will  be
considered in the processing of his application (Exhibits D & E).

The applicant reviewed the Air Force  evaluations  and  was  surprised
that her former spouse  submitted  a  letter  requesting  his  current
spouse as the beneficiary for SBP when the divorce decree ordered  him
to maintain her as the beneficiary.  Furthermore, she was informed the
law did not allow for a  Deemed  Election  for  SBP  in  1985  and  an
amendment allowing a deemed election went into effect on 1 March  1986
and was not retroactive.  Her former spouse was responsible for making
an SBP election as a person with an insurable interest rather  than  a
former spouse (Exhibit F).

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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.    Insufficient relevant evidence has been presented to demonstrate
the existence of an error or an injustice.  We do not take issue  with
the  applicant’s  contention  that  her  divorce  decree  ordered  her
deceased former husband to provide  former  spouse  coverage  for  her
under the SBP, but he did not do  so.   However,  we  agree  with  the
opinions and the recommendations of USAF/JAA and adopt their rationale
as the basis for our conclusion that the applicant has  not  been  the
victim of an error or injustice.  The applicant believes the  law  did
not allow for a deemed election for SBP  in  1985  and  the  amendment
allowing a deemed election was not effective until 1  March  1986  and
the amendment was  not  retroactive.   Public  Law  98-525,  effective
19 October 1984, allowed for deemed elections by former spouses within
one-year of court order requiring SBP  be  established.   Neither  the
applicant nor her deceased former husband took the  necessary  actions
to ensure she was provided former spouse coverage under the SBP within
the one-year  period  following  their  divorce.   Therefore,  in  the
absence of evidence to the contrary, 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 AFBCMR Docket Number BC-
2004-00978 in Executive  Session  on  24  September  2004,  under  the
provisions of AFI 36-2603:

                       Mr. Roscoe Hinton, Jr., Panel Chair
                       Mr. Michael K. Gallogly, Member
                       Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 8 Mar 04, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 20 Apr 04.
      Exhibit C. Letter, SAF/MRBR, dated 23 Apr 04.
      Exhibit D. Letter, AFBCMR, dated 19 May 04, w/atchs.
      Exhibit E. Letter, AFBCMR, dated 28 Jul 04, w/atchs.
      Exhibit F. Applicant’s Response, undated.




                             ROSCOE HINTON, JR.
                             Panel Chair