RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03298
            INDEX NUMBER:  137.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  26 APRIL 2006


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APPLICANT REQUESTS THAT:

Her deceased husband’s records be  corrected  to  show  he  elected
coverage for her under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

Enrollment in SBP was not offered to her husband  after  they  were
married.  There is no paperwork  to  show  they  were  offered  the
opportunity to enroll in the SBP after  their  marriage.   She  was
never consulted on waiving her SBP benefits.  DFAS has no record of
her husband or her waiving SBP benefits.

In support of her request, the applicant provided  a  copy  of  her
husband’s certificate of death.

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

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STATEMENT OF FACTS:

The Air Force was unable to  verify  the  former  member’s  marital
status  when  he  retired;  however,  finance  records  reflect  he
declined SBP coverage prior to his 1 Sep  76  retirement.   Defense
Enrollment Eligibility Reporting System (DEERS) records reflect the
member and the applicant married on 25  May  79,  but  he  did  not
notify the finance center of the change to his marital  status,  or
request SBP coverage  be  established  on  the  applicant’s  behalf
during any of the three open enrollments following their  marriage.
The member died on 1 Aug 04.

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AIR FORCE EVALUATION:

HQ  AFPC/DPPTR  recommends  denial.   The  applicant’s  claim  that
enrollment in the SBP was not  offered  when  she  and  the  member
married is without merit.  The laws  controlling  the  SBP  do  not
require the Services to advise newly married members  of  potential
benefits.  If the member was unmarried at retirement, he could have
elected SBP coverage on her behalf within the first year  of  their
marriage.  If the member was married at retirement, and even though
he may have bypassed a previous spouse, he had three  opportunities
to elect SBP coverage on the applicant’s behalf, Oct 81  –  30  Sep
82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29 Feb 00, but  failed  to
do so.  In addition, there was no provision in the open  enrollment
legislation requiring the Services to notify a spouse if the member
did not enroll.  SBP is similar to  commercial  life  insurance  in
that  an  individual  must  elect   to   participate   during   the
opportunities provided by law and pay the  associated  premiums  in
order to have coverage.  It would be inequitable to those  members,
who chose to participate when eligible  and  subsequently  received
reduced retired pay, and to other widows, whose sponsors chose  not
to participate, to provide entitlement to this widow on  the  basis
of the evidence presented.

There is no evidence of error or injustice, or any basis in law  to
grant relief in this case.

The DPPTR evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states she can provide verification of her  husband’s
marital status at the time of his  military  separation.   She  can
also provide verification of  their  marriage.   Applicant  further
states her husband was in the process of arranging for SBP when  he
became ill.  His condition worsened and he  was  unable  to  follow
through before his demise.  Her husband was  under  the  impression
she was covered.  She is on his military insurance and has received
other privileges awarded to military spouses.

Applicant’s complete submission is at Exhibit D.

By letter dated 24  Dec  04,  applicant  provided  a  copy  of  the
marriage license/certificate of marriage verifying her marriage  to
the former service member on 25 May 79, as well as a  copy  of  the
former member’s divorce decree, effective 3 Jul 69. (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 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 office of primary responsibility and adopt its  rationale
as the basis for our conclusion that the applicant has not been the
victim of an error or injustice.  The  former  service  member  had
four opportunities to establish coverage on the applicant’s behalf;
within the first year of  their  marriage  and  during  three  open
enrollment periods.  However, there is no evidence that he made  an
election in her behalf.  In addition, the laws governing the SBP do
not require  the  Services  to  advise  newly-married  retirees  of
potential  benefits,  nor  were  there  provisions  in   the   open
enrollment legislations requiring the Services to notify  a  spouse
if the member did not enroll.  Based on the foregoing, and  in  the
absence of evidence to the contrary, we find no basis upon which to
recommend favorable action on the applicant’s request.

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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 Docket Number BC-2004-
03298 in Executive Session on 7 July 2005, under the provisions  of
AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Kathy L. Boockholdt, Member
      Ms. Marcia Jane Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 04, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 29 Oct 04.
    Exhibit C.  Letter, SAF/MRBR, dated 5 Nov 04.
    Exhibit D.  Letter, Applicant, dated 1 Dec 04.
    Exhibit E.  Letter, AFBCMR, dated 13 Dec 04.
    Exhibit F.  Letter, Applicant, dated 24 Dec 04, w/atchs.




                                   MICHAEL J. NOVEL
                                   Panel Chair