RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01507
            INDEX CODE:  107.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  9 AUGUST 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

His second wife was named  as  the  eligible  SBP  beneficiary  without  his
knowledge.  He called the pay center in Kentucky to check  his  pay  record.
He informed them his former first spouse was supposed to be the elected  SBP
beneficiary.  He  was  instructed  to  forward  the  required  paperwork  to
correct his election, but after a number of follow-up calls was told by  the
pay center that they could no longer help him.  He has been unsuccessful  in
getting his election  changed  back  to  his  former  first  spouse  who  is
threatening to take him back to court if the  election  is  not  changed  as
deemed in the divorce decree.

In  support  of  the  application,  the  applicant  submits   his   personal
statement, a copy of his retirement order and separation  document,  a  copy
of his divorce decree, correspondence to and from the  finance  center,  and
retirement  leave  and  earnings  statements.   The   applicant's   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and first former spouse were married on 7 August 1953  and  he
elected spouse only SBP coverage based on a reduced  level  of  retired  pay
prior to his 1 September 1977 retirement.  The parties divorced on  4  March
1983 and in the martial settlement agreement, incorporated  in  the  divorce
decree, the applicant agreed to continue former spouse SBP coverage  on  his
first wife’s behalf.  However, even though he  provided  a  written  request
dated 4 May 1983 to change his coverage from spouse to  former  spouse,  the
finance center did not make the change because Public Law 98-94  authorizing
retirees to elect SBP coverage for their former spouses did not take  effect
until 24 September 1983 and because his statement was  notarized  on  28 May
1983, 24 days after the date it was signed.  His first former spouse’s  date
of birth (22 December 1935)  continued  to  be  reflected  as  the  eligible
spouse beneficiary and spouse SBP premiums continued  to  be  deducted  from
his pay.  The applicant and his second wife married on  24  June  1983,  but
there is no evidence he notified the finance center of  the  change  in  his
marital status or requested coverage be  established  on  her  behalf.   The
applicant and his second wife divorced on 2  April  1986.   When  Air  Force
retired pay accounts were transferred  from  Denver  to  the  Cleveland  pay
center, the applicant’s record was updated showing his second former  wife’s
name and Social Security Number, but with his first former  wife’s  date  of
birth as the eligible spouse beneficiary.  The applicant married  his  third
wife on 4 December 1998, but he did not notify the  finance  center  of  his
latest martial status change.

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AIR FORCE EVALUATION:

Based on guidance issued by the AFBCMR on 18 March 2004, HQ  AFPC/DPPTR  has
no 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 17 June 2005, the Board staff forwarded the applicant a copy of  the  Air
Force evaluation and memorandums from HQ USAF/JAA  for  review  and  comment
(Exhibit D).  In his response dated 30 June 2005, the  applicant  reiterated
his earlier comments (Exhibit E).

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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 timely filed.

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 HQ USAF/JAA and adopt  the  rationale
expressed as the basis for our decision that the  applicant  has  failed  to
sustain his burden that he  has  suffered  either  an  error  or  injustice.
Neither the applicant nor the  former  spouse  submitted  a  valid  election
within the one-year period  required  by  law  to  establish  former  spouse
coverage.  In addition, the AFBMCR cannot rule  on  a  dispute  between  two
claimants to a benefit that only one of them can receive.   Furthermore,  it
is not appropriate for the Board to adjudicate such  a  dispute  since  that
task is properly left to the courts.  However, if  the  applicant’s  current
spouse submits a notarized statement relinquishing her  entitlement  to  the
SBP, the Board may be  willing  to  reconsider  the  applicant’s  appeal  in
consideration of this evidence.  In  view  of  the  foregoing,  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 27 October 2005, under the provisions of AFI 36-2603:

                       Mr. Michael K. Gallogly, Panel Chair
                       Ms. Kathleen F. Graham, Panel Member
                       Mr. Alan A. Blomgren, Panel Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2005-01507.

      Exhibit A.  DD Form 149, dated 29 Apr 05, w/atchs.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPPTR, dated 6 Jun 2005.
      Exhibit D.  Letter, AFBCMR, dated 17 Jun 05 w/atchs.
      Exhibit E.  Applicant’s Rebuttal, dated 30 Jun 05.





            MICHAEL K. GALLOGLY
            Panel Chair