RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00493
            INDEX NUMBER:  137.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  13 August 2005

___________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken that would allow him to terminate former
spouse coverage under the Survivor Benefit Plan (SBP).

In his 26 Apr  04  response  to  the  advisory  opinion,  applicant
requests that his participation in the SBP  be  terminated  in  its
entirety (Exhibit C).

___________________________________________________________________

APPLICANT CONTENDS THAT:

His SBP election of “former spouse” was based on incorrect  wording
in his divorce decree, misinformation received  from  the  casualty
affairs office at Scott AFB,  the  USAF  Academy’s  publication  (A
Guide  to:  Military  Marriage  Dissolution,  Separation,   Pension
Division and DFAS DRO’s), and the Defense  Finance  and  Accounting
Service, Cleveland Center (DFAS-CL).  If  the  correct  information
had been provided to his former spouse,  her  SBP  selection  would
have been “none.”

In support of his request, applicant provided  a  letter  from  his
former spouse’s attorney with a chronology  of  events  surrounding
the election of former spouse coverage; copies  of  his  separation
agreement and divorce decree; a  copy  of  “A  Guide  to:  Military
Marriage Dissolution, Separation, Pension Division and DFAS DRO’s”;
DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement  For
Former Spouse Coverage; and DD  Form  2656,  Data  for  Payment  of
Retired Personnel, executed  by  the  applicant  on  28  Oct  2002,
wherein he elected spouse only SBP coverage for his current spouse.

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

___________________________________________________________________


STATEMENT OF FACTS:


The following facts were obtained from  the  Air  Force  evaluation
(Exhibit B):

The applicant and his former spouse were divorced on 28 Dec 01, and
the separation agreement, incorporated in the divorce decree,  held
that the former spouse would have the option of choosing  the  SBP.
However, the agreement contained  an  unenforceable  SBP  provision
(i.e., that the former spouse would pay the associated costs).

The applicant married his current spouse on 2 Feb 02.  On 7 Dec 02,
DFAS-CL received a signed statement  from  the  applicant’s  former
spouse, attempting to request a deemed SBP election  for  full  SBP
coverage, and  a  DD  Form  2656-1  (Survivor  Benefit  Plan  (SBP)
Election Statement for Former Spouse Coverage), signed by both  the
applicant and his former spouse.  Since they were  received  within
the first year of their divorce, these documents  were  erroneously
processed as a valid request from the former spouse  for  a  deemed
SBP election.  DFAS-CL established former spouse coverage based  on
the invalid deemed election they received from the member’s  former
spouse.

Prior to his 1 Feb 03 retirement, the applicant elected spouse only
SBP coverage based on full retired pay for his current spouse.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended the Board approve the applicant’s request
and correct the record to show he made a valid election for  spouse
only coverage effective 1 Feb 03.  Approval should be contingent on
the applicant providing an amended divorce decree and recoupment of
any unpaid premiums.

If a servicemember’s divorce occurs prior  to  retirement  and  the
divorce decree awards SBP coverage to the former spouse, the former
spouse  may  request  a  deemed  election  within  the  first  year
following the date the divorce was finalized.  That deemed election
request, if valid, is held in abeyance at the Defense  Finance  and
Accounting Service (DFAS) until the member retires.  At the time of
the member’s retirement, the member may  voluntarily  elect  former
spouse coverage.  If the member  fails  or  refuses  to  elect  SBP
coverage for the former spouse, the deemed election is established.
 In the event a retiree wishes to  terminate  court-ordered  former
spouse coverage, he or she must provide an amended decree, removing
the requirement.  In such a case,  a  remarried  member’s  eligible
spouse becomes the valid spouse beneficiary by operation of law.

The statement  referred  to  in  the  guide  to  military  marriage
dissolution  submitted  by  the  applicant  was  not  prepared  nor
condoned by any Department  of  Defense  (DoD)  or  Air  Force  SBP
manager for it is not  in  compliance  with  the  statute  and  was
subsequently withdrawn from its limited availability.  Although the
divorce decree appeared to give the former  spouse  the  option  to
choose  SBP  coverage,  that  provision  of  the  court  order  was
unenforceable by virtue of the language that  required  the  former
spouse to be responsible for payment of the SBP cost.  Although the
language of the decree cannot and should not be amended without due
process, there appears to be sufficient willingness by both parties
to release the applicant of the requirement to elect former  spouse
SBP coverage on his former  spouse’s  behalf.   However,  to  date,
there is no record that either party sought to have the requirement
to provide former spouse SBP coverage amended or rescinded.

A complete copy of the evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the recommendation in  the  Air  Force
evaluation stating, in part, that his former spouse desired to  end
the  SBP  based  upon   financial   hardship   considerations   and
misleading/confusing counseling.  He was directed by  his  Military
Personnel Flight (MPF) to complete a DD Form 2656, Data for Payment
of Retired Personnel, and was erroneously directed to  select  item
“26a,”  Spouse  Coverage  Only.   Upon  a  later  review,  it   was
determined he  should  have  selected  item  “26e,”  Former  Spouse
Coverage.  He would like to terminate SBP coverage entirely and get
a full refund of premiums paid; he does not want to switch coverage
to his current spouse.

He complied with the Decree  of  Dissolution,  pertaining  to  life
insurance.  The decree states “Wife shall also have the  option  of
choosing  Survivor  Benefit  Plan  (SBP)  coverage  upon  Husband’s
retirement from the military….” This was not  a  court-ordered  SBP
participation; the court ordered that she have the option to select
SBP coverage, which she did.  His attorney advised him  not  to  go
back to court to obtain an order simply canceling the SBP provision
as he feels they  complied  with  the  letter  and  intent  of  the
original decree.

Applicant’s complete response is at Exhibit C.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPTR states that applicant’s claim of misleading/confusing
counseling is without merit because he based  his  decisions  on  a
pamphlet that was not an approved  Department  of  Defense  or  Air
Force SBP document.  He acknowledged he intended  to  elect  former
spouse  coverage  and  that  coverage  was  established  upon   his
retirement.  An SBP election may not be arbitrarily  terminated  as
long as the beneficiary remains eligible.  Therefore, since  former
spouse coverage was established based  on  a  court  agreement,  an
amended court order removing the SBP requirement must be obtained.

DPPTR stands by their original recommendation  that  the  applicant
provide an amended divorce decree, releasing him of the  obligation
to provide former spouse coverage.   If  he  does  this,  then  his
record could be corrected to reflect  former  spouse  coverage  was
changed to spouse only coverage based on full retired pay effective
the date of the amended divorce decree.

However, if the Board decides to grant relief and show  the  member
declined SBP coverage,  approval  should  be  contingent  upon  the
member providing, in addition to the above described court order, a
notarized statement  from  his  current  wife,  concurring  in  his
request and waiving her eligibility to receive SBP payments in  the
event of the member’s death.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

The advisory writers must have misunderstood the Court’s  direction
and his intent in establishing SBP coverage for his former  spouse.
He does not seek termination of former spouse  coverage  to  simply
have it revert to current spouse coverage, as the  second  advisory
opinion reflects in its background statement, as it would be unjust
and a financial hardship.

The Court directed the option of SBP; it did not direct  SBP.   His
attorney recommended he not submit an  amended  order  request,  as
recommended in the advisory opinion, as no mistake was made on  the
behalf of the Court or its documents in the first place.  He  again
feels the advisory opinion is  incorrect,  as  his  current  spouse
never had the option  to  elect/decline  SBP  coverage  as  it  was
superseded by  his  former  spouse’s  election  for  former  spouse
coverage.

He calls the Board’s attention to his  29  Aug  02  letter  to  his
former spouse (copy  attached),  wherein  he  advised  her  of  the
required SBP election, which meets the divorce decree’s intent.  He
stated in the first paragraph “…as I will decline coverage  if  you
make no election.”  This along with his  current  wife’s  notarized
SBP declination statement, as suggested in  the  advisory  opinion,
should clearly support his/their intention of never contracting SBP
coverage to benefit his current spouse.

In  addition  to  documents  submitted  with  his  initial  appeal,
applicant provided a copy of his 29 Aug 02  letter  to  his  former
spouse, a court Status Conference  Order  (May  14,  2003),  and  a
notarized statement from his current spouse waiving her entitlement
to an SBP annuity.

Applicant’s complete response, with attachments, is at Exhibit F.

___________________________________________________________________




THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of error or injustice.  In this respect, we note that
the applicant and his former spouse  were  divorced  prior  to  his
retirement  from  the  Air  Force.   Their  separation   agreement,
incorporated in the divorce decree, held  that  his  former  spouse
would have the option of choosing SBP  coverage  when  he  retired.
However, it contained an unenforceable provision,  i.e.,  that  she
would be responsible for the associated premiums.  It appears  that
prior to requesting that a deemed election be made in  her  behalf,
the former spouse attempted to verify with Air  Force  and  Defense
Finance and Accounting Service (DFAS) officials whether  she  would
have to pay the premiums.  She was advised that the military member
would be responsible for the premiums.  Based  on  the  information
provided, she signed and returned the selection  for  SBP  benefits
within the time limit imposed in the divorce decree.  Subsequent to
the member’s retirement, he  provided  his  former  spouse  with  a
statement outlining the  breakdown  of  his  retired  pay  and  the
portion she  would  be  receiving,  minus  the  cost  for  the  SBP
coverage.  Finding that she was financially unable to pay  the  SBP
premiums, the former spouse attempted to cancel the SBP.   She  was
advised that she could do it at any time so long as she had a court
order stating she had the option to “opt out”  and  stop  the  SBP.
She was later told it could not be stopped even with a court order.
 In addition, a Base Wing Legal Office publication provided to  the
former spouse as a guide, albeit  an  unofficial  SBP  publication,
indicated that a designated or  deemed  former  spouse  beneficiary
could terminate their designation should he/she feel  the  need  or
financial necessity to do so.  Based on the foregoing,  we  believe
the former spouse made her election for survivor coverage based  on
misleading/confusing guidance with respect to her options regarding
a deemed election.  Therefore, we recommend that her designation as
a former spouse beneficiary under the SBP be voided.  We  note  the
Air Force office of primary responsibility has recommended that the
applicant’s records  be  corrected  to  reflect  he  made  a  valid
election for spouse only coverage at the time  of  his  retirement.
However, after careful review of the evidence provided, it  appears
the applicant did not intend to participate in the SBP  program  if
his former spouse waived her right to SBP  coverage.   In  view  of
this and noting that his  current  spouse  has  provided  a  sworn,
notarized statement waiving her entitlement to SBP benefits in  the
event of the applicant’s death, we believe the  records  should  be
corrected to reflect he declined to participate in the SBP program.
 Accordingly, we recommend the records be  corrected  as  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   effective
1 February 2003, he elected to decline Survivor Benefit Plan  (SBP)
coverage and his spouse concurred with his election.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2004-00493 in Executive Session  on  28  June  2005,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Kathleen Graham, Member
      Mr. Michael K. Gallogly, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Jun 2003, w/atchs.
     Exhibit B.  Letter, HQ AFPC/DPPTR, dated 16 Mar 04.
     Exhibit C.  Letter, AFBCMR, dated 13 Apr 04.
     Exhibit D.  Letter, Letter, HQ AFPC/DPPTR, dated 9 Aug 04.
     Exhibit E.  Letter, Applicant, dated 26 Apr 04.
     Exhibit F.  Letter, SAF/MRBR, dated 13 Aug 04.
     Exhibit G.  Letter, Applicant, dated 1 Sep 04, w/atchs.




                                   MICHAEL J. NOVEL
                                   Panel Chair


AFBCMR BC-2004-00493




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 [APPLICANT], be corrected to show that effective
1 February 2003, he elected to decline Survivor Benefit Plan
coverage and his spouse concurred with his election.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency