RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
00415
                                             INDEX CODE:  137.04

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  YES



MANDATORY CASE COMPLETION DATE:  8 AUGUST 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

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

___________________________________________________________________

APPLICANT CONTENDS THAT:

She was never sent her portion of her ex-spouse’s retired pay.  She
is requesting 30% of her ex-spouse’s retired  pay  as  directed  in
their divorce decree.  The payments should  have  been  sent.   She
requests survival benefits.  She and her former spouse were married
for 23 years.  She was not aware of her rights.

In support of her request, applicant  provided  copies  of  letters
from the Defense Finance and Accounting Service – Cleveland  Center
(DFAS-CL) pertaining to her  request  for  former  spouse  payments
under the Uniformed Services Former Spouse’s Protection Act,  their
Marriage License and Decree of Divorce, a Death Certificate, and  a
copy of DD Form 2656, Data for Payment of Retired Personnel.

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

___________________________________________________________________

STATEMENT OF FACTS:

The applicant and the member  were  married  on  14  Jul  56.   The
parties divorced on 19 Jan 79; the divorce decree was silent on the
SBP.

The Air Force stated the member was a member of  the  Air  National
Guard.  Defense Enrollment  Eligibility  Reporting  System  (DEERS)
records show the decedent remarried on 30 Jul 81, but  that  wife’s
eligibility under DEERS expired on 31 May 85.  The member  declined
Reserve Component SBP (RCSBP) effective 9 Feb  86  when  he  became
eligible to receive retired pay.

On 2 Jul 98, the former member executed DD Form 2656 electing child
only coverage based on full retired pay.  He was not married at the
time.  The member remarried on 20 Mar 01 and the  parties  divorced
on 4 Jun 03.  The decedent’s son (date  of  birth  29  Nov  88)  is
currently receiving a monthly annuity of $1,414.

The former member’s date of birth is 8 Dec 38.  He died on  22  Dec
04.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial, stating there is  no  evidence  of
error or injustice  in  this  case.   The  applicant’s  claims  are
without merit.  A court ordered division  of  retired  pay  is  not
considered and should not be interpreted as pertaining to the  SBP.
The applicant’s  alleged  attempts  to  establish  payment  of  the
alimony authorized by her divorce decree may have required  further
civil action, not  Air  Force  intervention.   SBP  is  similar  to
commercial life insurance in  that  an  individual  must  elect  to
participate and pay  the  associated  premiums  in  order  to  have
coverage.  Even though the  law  in  effect  at  the  time  of  the
applicant’s divorce did not allow retired members to provide former
spouse SBP coverage, the  member  could  have  voluntarily  elected
former spouse SBP  coverage  on  the  applicant’s  behalf  when  he
applied for commencement of his retired pay, but he did not.

Records verify that the 1 Mar 99 – 29 Feb 00 open enrollment packet
was mailed to the correspondence address the member had provided to
DFAS-CL, the address where he resided until his death, but there is
no evidence he returned an election on the applicant’s behalf.   In
the event he had submitted an election for former spouse  coverage,
the laws controlling  the  SBP  would  have  required  the  child’s
coverage to terminate.  Elections for former  spouse  coverage  may
include as contingent beneficiaries  only  the  children  resulting
from the marriage of the member and the former spouse.

Public Law (PL) 99-145 (8 Nov 85, but effective 1 Mar  86)  permits
retiring members to elect SBP coverage for a former spouse with the
same cost and coverage options as spouse coverage.  A  member,  who
has an eligible former spouse at the time of retirement,  and  does
not elect SBP former spouse coverage,  may  not  later  elect  that
option unless Congress authorizes an open enrollment.

The complete Air Force evaluation is at Exhibit B.
___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submits additional comments concerning  her  marriage
to the former service member  and  her  life  subsequent  to  their
divorce in 1979.

Her complete response is at 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 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.   Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling basis to  recommend
granting the relief sought in this application.

4.  The applicant's case is adequately documented and  it  has  not
been shown that a personal appearance with or without counsel  will
materially  add  to  our  understanding  of  the  issue   involved.
Therefore, the request for a hearing is not favorably considered.

___________________________________________________________________

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-2005-
00415 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 14 Jan 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 18 Apr 05.
    Exhibit C.  Letter, SAF/MRBR, dated 22 Apr 05.
    Exhibit D.  Letter, Applicant, dated 27 Apr 05.




                                   MICHAEL J. NOVEL
                                   Panel Chair