RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02024
            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 maintain the applicant
as the beneficiary for any survivor benefits.   She  was  married  and
supported the servicemember throughout his military career.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the servicemember were married on 1 June 1957.   The
servicemember on 19  September  1979,  prior  to  his  60th  birthday,
elected spouse and child Reserve Component SBP (RCSBP) based  on  full
retired pay.  The applicant and the  servicemember  were  divorced  21
December 1999 and the separation and  property  settlement  agreement,
incorporated in the  divorce  decree,  reflected  the  servicemember’s
concurrence to maintain the applicant as a beneficiary to receive half
of his net retirement.  There is no indication in the member’s records
that either he or the applicant submitted a valid election for  former
spouse  coverage  within  one  year  following  their  divorce.    The
servicemember  and  C.  were  married   on   22 January   2003.    The
servicemember failed to request the finance  center  establish  spouse
coverage  on  her  behalf.   SBP  premium  were  deducted   from   the
servicemember’s retired pay  until  February  2003  when  the  finance
center suspended the spouse portion of his SBP.  There is no  evidence
the  finance  center   refunded   the   retroactive   premiums.    The
servicemember died on 27 February 2004.  To date, the  widow  has  not
applied for the SBP annuity.

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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:

On 12 August 2004, the Board  staff  forwarded  the  counsel  and  the
applicant copies of memorandums from HQ  USAF/JAA  and  HQ  AFPC/DPPTR
which will be considered in the processing of her application (Exhibit
C)

The applicant reviewed  the  Air  Force  evaluations  and  states  the
divorce decree stated “The husband also agrees to take no action  that
might limit the wife’s ability to  draw  retirement  after  his  death
other than the divorce action.”  She believes his  failure  to  submit
the required paperwork or notify her of the requirement clearly put  a
limitation on her ability to receive retirement after his death.   She
was not notified by her former spouse, the attorney  or  the  military
that an application needed to be filed in order for her to receive the
benefit.  The fact that she was not notified that action needed to  be
taken in order for her to receive a benefit should not be held against
her.  Also, her former spouse suffered a  stroke  which  affected  his
short term memory, which may be a reason he failed to take  action  or
notify her of the requirement for the benefit.  She was married to the
servicemember for 42 years.  She was a dedicated spouse to him and his
military career and she hopes she is awarded  the  proper  restitution
the servicemember intended for her to receive (Exhibit D).

_________________________________________________________________

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 her divorce  decree  ordered  her  deceased
former husband to provide former spouse coverage  for  her  under  the
SBP, but he did not do so.   This  is  indeed  regrettable.   However,
since 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 in which they could have done
so, it appears that the applicant has  no  legal  entitlement  to  the
relief sought.  It appears by operation  of  law,  the  widow  of  the
deceased former member is his legal beneficiary and we do not find the
failure of the deceased former member to comply with the terms of  the
divorce decree sufficient  to  perpetuate  an  injustice  against  the
current spouse.  This is especially true  since  the  applicant  could
have timely taken the necessary actions to ensure she  would  get  the
coverage agreed to in the divorce decree  without  the  assistance  or
concurrence of her former deceased husband.  We are not  unsympathetic
to her dilemma.  However, in the absence of a showing the applicant is
legally entitled to the relief sought or a waiver of entitlement  from
the current spouse, we conclude she has failed to sustain  her  burden
of establishing she is the victim of either  an  error  or  injustice.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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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-
2004-02024 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 30 Jun 04, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 13 Jul 04.
      Exhibit C. Letter, AFBCMR, dated 12 Aug 04, w/atchs.
      Exhibit D. Applicant’s Response, dated 23 Aug 04.




                             ROSCOE HINTON, JR.
                             Panel Chair