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AF | BCMR | CY2004 | BC-2004-02336
Original file (BC-2004-02336.doc) Auto-classification: Denied



                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02336
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former husband’s records be corrected to show that she is entitled
to a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

There was tampering of the divorce papers; the initials on the corners
are not hers, and page 3 of the divorce papers “USAF Retirement Rights
to Husband” was inserted after she signed.

In support of the appeal,  applicant  submits  a  copy  of  the  Death
Certificate, a copy of the divorce papers,  a  copy  of  the  marriage
certificate, a copy of a letter from the Bar Association, a copy of  a
letter from the Superior Court of Guam; a copy of the final decree,  a
copy of an  order  from  Superior  Court  of  Guam  for  half  of  the
retirement pay.

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member and the applicant were married on 16 January 1965,
they divorced on 16 December 1985, and  the  divorce  decree  did  not
refer to the SBP.  The former member and R--- (his second  wife)  were
married on 16 November 1988  and  he  elected  spouse  and  child  SBP
coverage based on a reduced level of retired pay prior to his 1 August
1990 retirement.  The youngest child lost eligibility  effective  June
1996.  The former member died on 4 March 2004 and SBP annuity payments
of $238 monthly were established on his widow’s behalf.  Subsequently,
the Department of Veterans Affairs (VA)  awarded  her  Dependency  and
Indemnity  Compensation  (DIC)  payments.   SBP  payments   terminated
because DIC payments are greater than $238.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states the former member could have elected  former  spouse
coverage voluntarily  upon  his  retirement,  but  failed  to  do  so.
Instead, he elected SBP spouse coverage  for  his  (new)  wife.   Even
though the applicant (former spouse) claims  her  divorce  decree  was
tampered with by removing  the  survivor  benefits  from  the  divorce
papers, she had the opportunity to readdress the SBP issue during  the
27 July 1998 hearing held at the Superior Court of Guam.  However, the
order she provided  only  referred  to  the  division  of  the  former
member’s military retirement pension.  Under  the  Uniformed  Services
Former Spouses’  Protection  Action,  the  former  spouse’s  right  to
payments based on a division of retired pay terminated upon the  death
of the former member.  Therefore, they recommend denial of the  former
spouse’s request.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 August 2004, a copy of the Air Force evaluation was forwarded to
the former spouse for review and response within 30 days.  As of  this
date, no response has been received by this office.

_________________________________________________________________

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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for  the  conclusion  that  the
applicant  has  not  been  the  victim  of  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.

_________________________________________________________________

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  this  application  in
Executive Session on 2 December 2004, under the provisions of AFI  36-
2603:

                 Mr. Roscoe Hinton Jr., Panel Chair
                 Mr. Michael J. Novel, Member
                 Mr. Michael K. Gallogly, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 20 Jul 04, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPTR, undated.
      Exhibit D. Letter, SAF/MRBR, dated 27 Aug 04.




                             ROSCOE HINTON JR.
                             Panel Chair

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