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AF | BCMR | CY2005 | BC-2005-00792
Original file (BC-2005-00792.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00792
            INDEX CODE:  137.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  06 JUNE 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected  to  reflect  his  former  spouse  as  the  eligible
Survivor Benefit Program  (SBP)  beneficiary  as  dictated  in  his  divorce
decree.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He and his former spouse divorced in September of 2001, and  she  should  be
the SBP beneficiary.

In support of the application, the applicant submits a recently  signed  and
dated SBP Election statement for Former  Spouse  Coverage,  a  statement,  a
copy of his divorce decree, and a copy of his Data for  Payment  of  Retired
Personnel form.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant retired on 1 November 2001.  He and his former spouse  married
on 29 August 1980.  The applicant elected spouse  only  SBP  coverage  three
months prior to his 1 November 2001 retirement based on a reduced  level  of
retired pay.  His former spouse concurred  in  the  election.   The  parties
divorced on 5 September 2001, and  in  the  divorce  decree,  the  applicant
agreed to participate in the SBP, naming the former spouse as  the  eligible
beneficiary.  Absent an election change prior to 1 November 2001 to  reflect
former spouse vice spouse  coverage,  the  Defense  Finance  and  Accounting
Service – Cleveland Center (DFAS-CL) established  reduced  spouse  only  SBP
coverage.

_________________________________________________________________




AIR FORCE EVALUATION:

HQ AFPC/DPPTR states there is no evidence the member  returned  to  the  SBP
office prior to his retirement date to change the beneficiary category  from
spouse to former spouse.  The finance center has no record showing that  his
former spouse submitted a  valid  deemed  election  during  the  first  year
following the divorce.  The applicant and current  spouse  were  married  on
28 September 2002, but he did not notify the finance center  of  the  change
in his marital status nor request coverage be established on his new  wife’s
behalf;  therefore,  the  SBP  data  at  the  finance  center  continued  to
erroneously reflect the former spouse’s  name  and  date  of  birth  as  the
eligible spouse beneficiary.  Premiums for coverage are being deducted  from
the member’s retired pay.

DPPTR states that based on guidance issued by the AFBCMR on  18 March  2004,
they are  forwarding  this  request  without  a  recommendation  because  it
involves  two  potential  SBP   beneficiaries.  DPPTR’s   evaluation,   with
attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 April 2005, a copy of the Air Force evaluation was  forwarded  to  the
applicant for review and comment (Exhibit B).  On  5  May  2005,  the  Board
staff forwarded the applicant copies of memorandums from HQ USAF/JAA,  which
will be considered in the processing of his application (Exhibit D).  As  of
this date, this office  has  received  no  response  to  the  aforementioned
correspondence.

_________________________________________________________________

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  the  recommendation  of  USAF/JAA  and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error or injustice.   Neither  the  servicemember  nor  the
former  spouse  submitted  a  valid  election  within  the  one-year  period
required by law to establish former  spouse  coverage.   Therefore,  in  the
absence of evidence to the contrary, we find no 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 7 July 2005, under the provisions of AFI 36-2603:

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

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2005-00792.

      Exhibit A.  DD Form 149, dated 31 Jan 05.
      Exhibit B.  Letter, HQ AFPC/DPPTR, dated 08 Apr 05.
      Exhibit C.  Letter, SAF/MRBR, dated 15 Apr 05.
      Exhibit D.  Letter, AFBCMR, dated 5 May 05, w/atchs.





            MICHAEL J. NOVEL
            Panel Chair

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