RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
01655
                                             INDEX CODE:  137.04

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  21 NOVEMBER 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 married to her former husband from 1971–1994, and she spent
eight years as an Air Force spouse.  They divorced in 1994 and  the
divorce decree entitled her to a survivor benefit annuity.  She was
misinformed by personnel that everything relating  to  the  annuity
was properly processed.

In Spring 2001, Defense Finance and Accounting Service –  Cleveland
Center (DFAS-CL) informed her that she was no longer listed as  the
beneficiary on her former husband’s retirement benefits.   In  June
01, she sent a certified letter to  DFAS–CL  with  a  copy  of  her
husband’s retirement order and their  divorce  papers.   She  never
received a response from DFAS.  Upon her former husband’s death  on
24 May 04, she discovered that the  annuity  beneficiary  had  been
changed to his current spouse, violating the divorce decree.

A week after the divorce from her husband,  she  took  the  divorce
decree to Offutt AFB to finish  the  paperwork  for  DFAS  for  the
annuity of her former husband’s retirement.  Their  divorce  decree
said she was to make the appropriate arrangements for the  survivor
benefits.  The base told her that everything  was  taken  care  of.
Nothing was said that indicated she would actually have  to  follow
up with DFAS.  She was wrongly informed.  She is  entitled  to  his
annuity, she was married for 22 years and  her  husband  paid  into
this for her.

In  support  of  her  application,  applicant   provided   personal
statements from both her and her daughter, copies of her 2  Jun  01
letter to DFAS, a 2 Jun 01 letter  to  her  former  husband,  their
divorce decree, a certified letter to the Director of DFAS from her
attorney,  her  former  husband’s  death   certificate,   and   his
retirement order.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force stated the  former  member  and  the  applicant  were
married on 2 Oct 71 and he elected spouse and child coverage  based
on full retired pay prior to his 13 Feb 78  disability  retirement.
The parties divorced on 22 Feb 96 and the divorce  decree  provided
by the applicant  found  her  to  be  “eligible  to  make  her  own
arrangements with the appropriate government  finance  center”  for
the SBP.  However, there is no  evidence  she  submitted  a  deemed
election within the  required  time  limit,  nor  that  the  member
elected former spouse coverage on her behalf.  The  youngest  child
lost eligibility in Jun 96 due to age.  The former member remarried
on 21 Dec 96, but he failed to request that DFAS-CL  establish  SBP
coverage on his new spouse’s behalf within the first year following
his  marriage.   The  member’s  retired  pay  records   erroneously
reflected the applicant’s date of birth (20 Nov 50) as the eligible
spouse beneficiary and SBP premiums were deducted from his  retired
pay following their divorce.  In Apr 99, the finance center changed
the spouse beneficiary to his second  wife.   The  member  died  on
24 May 04 and his widow is receiving a monthly annuity of $307.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPRT  indicates  that  since  the  request  involves  two
potential SBP beneficiaries, no recommendation is provided.

A complete copy of the Air Force evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 Aug 05, the Air Force evaluation and two advisory opinions on
cases similar to the applicant’s were forwarded for her review  and
comment within 30 days.  As of this  date,  no  response  has  been
received by this office (Exhibit C).

___________________________________________________________________

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
USAF/JAA and adopt the rationale expressed as  the  basis  for  our
conclusion the applicant has not been the victim  of  an  error  or
injustice.  Neither the servicemember nor the applicant submitted a
valid election within  the  one-year  period  required  by  law  to
establish former spouse coverage.  In addition, the  AFBCMR  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.  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 Docket Number BC-2005-
01655 in Executive Session on 27 October 2005, under the provisions
of AFI 36-2603:

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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 May 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 22 Jun 05, w/atchs.
    Exhibit C.  Letter, AFBCMR, dated 26 Aug 05, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair