RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02514
                       INDEX CODE:  137.00

                       COUNSEL:  NONE

                       HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  14 FEB 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be corrected to terminate the deduction  of  the  Survivor
Benefit Plan (SBP) premiums from her retired pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of her retirement she did not elect SBP.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was notified of her eligibility for retired pay  and  to
participate in the Reserve Component Survivor Benefit Plan (RCSBP)  on
6 September 1989.

The RCSBP forms were mailed to the applicant by certified mail and the
applicant signed the Postal Service (PS) Form 3811,  Domestic  Receipt
acknowledging receipt of the package, although the date is illegible.

There is no evidence in the  applicant’s  records  that  indicates  an
election was received by Headquarters Air Reserve Personnel Center (HQ
ARPC) within the required 90-day suspense.  Since  the  applicant  did
not make an RCSBP election, she was afforded the opportunity  to  make
an SBP election when she applied for retired pay at age 60.

The applicant submitted a DD Form 2656, Data for  Payment  of  Retired
Personnel dated 21 March 2000, electing not to
participate in SBP.   Her  spouse  did  not  sign  the  DD  Form  2656
concurring in her decision to decline coverage.   Therefore,  by  law,
full spouse coverage was established.

The applicant was eligible for Reserve retired pay under the provision
of 10 USC, Section 12731, effective 16 May 2000,  her  60th  birthday.
She is currently receiving Reserve retired pay.

The applicant was apparently divorced in March 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPS states the applicant’s records indicate she did not submit an
election for SBP at the time of her notification  for  eligibility  to
participate in the SBP.  The applicant submitted the DD Form  2656  in
March 2000 declining to participate in SBP.  Under the  provisions  of
10 USC 1448(a)(3) a spouse is required to sign the form  acknowledging
the SBP election.  The applicant’s spouse did not  sign  the  DD  Form
2656 acknowledging the SBP election  had  been  declined.   Since  the
applicant was still legally married  at  the  time,  her  election  to
decline SBP was not valid.

ARPC/DPS recommends the applicant  contact  the  Defense  Finance  and
Accounting Service-Cleveland Center (DFAS-CL) regarding any  questions
on  the  deductions  from  her  retired  pay.    Therefore,   ARPC/DPS
recommends the request relief be denied.

A complete copy of the evaluation is attached at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that due to
her former spouse being erroneously added to her SBP account,  she  is
requesting for DFAS to stop deducting premiums from  her  retired  pay
and she be refunded the premiums and interest.

She further states they signed the forms to decline the SBP at her 20-
year election period.  Both she and her former spouse signed the forms
and returned them to HQ ARPC.

She further states she was not notified that  her  former  spouse  was
being added to her military retirement account for SBP.  Nor  was  she
notified that her former spouse  was  interfering  with  her  military
records.

She called ARPC prior to signing the DD Form 2656 to  inquire  if  her
then spouse needed to sign the form and was informed that he  did  not
need to sign the form because he had already signed to decline the SBP
at the 20-year election period.

Her former spouse was not awarded any of her  military  retirement  to
include SBP.  Her former spouse stated under oath  in  court  that  he
signed declining SBP benefits at the  time  of  her  20-year  election
period.  Her former spouse was again denied SBP in 2003 by  the  court
(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 an error or an 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  the  Air
Force and adopt its rationale as the basis for our conclusion that the
applicant has not been the victim of an error or  an  injustice.   The
applicant contends she did not elect SBP at the  time  of  retirement.
However, she submitted an election to decline SBP when she applied for
retired pay in March 2000 without obtaining her spouse’s  concurrence.
Since the applicant was still legally married, her spouse’s  signature
was required by law to  concur  with  the  decision  to  decline  SBP.
Therefore, until her divorce is finalized, full SBP spouse coverage is
in effect and she is responsible for any applicable premiums.  In view
of the foregoing and 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(s)   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 AFBCMR Docket Number BC-
2005-02514  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 1 Aug 05, w/atchs.
      Exhibit B. Letter, HQ ARPC/DPS, dated 19 Sep 05, w/atchs.
      Exhibit C. Letter, SAF/MRBR, dated 23 Sep 05.
      Exhibit D. Applicant’s Response, dated 29 Sep 05, w/atchs.




                             MICHAEL K. GALLOGLY
                             Panel Chair