RECORD OF PROCEEDINGS
              AIR FORCE BOARD FOR CORECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
02657
                                             INDEX CODE:  137.00

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  YES



MANDATORY CASE COMPLETION DATE:  27 FEBRUARY 2007


___________________________________________________________________

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:

Her former spouse told her that  she  would  receive  the  Survivor
Benefit Plan (SBP) annuity as stated in their divorce decree.

Neither she nor her former husband knew about the  document  needed
to establish former spouse SBP in her behalf.   She  is  the  named
spouse and beneficiary; the word “former” was somehow omitted.  The
divorce decree clearly shows it  was  his  intent  that  she  would
receive this benefit.

She and her former husband visited on the phone a week  before  his
death, and he assured her the SBP  was  in  place  and  that  their
divorce clearly stated so.

In support of her request, the applicant  provided  copies  of  her
marriage certificate, divorce decree, a letter to  USAF  Accounting
and Finance Center, a DD  Form  2293,  Request  for  Former  Spouse
Payments from Retired Pay, Retiree  Annuitant  Account  Statements,
and her former spouse’s death certificate.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicates the member and the applicant  were  married
on 31 May 60.  The member elected spouse  and  child  SBP  coverage
based on full retired pay prior to his 1 Feb  75  retirement.   The
youngest child lost eligibility Jun 84.  The  parties  divorced  on
31 Jul 87 and the divorce  decree  ordered  that  the  decedent  be
required to continue the SBP on the  applicant’s  behalf;  however,
neither submitted a valid election change during the required  time
limit.  Defense Enrollment  Eligibility  Reporting  System  (DEERS)
records show the member remarried on 20 Aug 87,  but  there  is  no
evidence he requested  that  the  Defense  Finance  and  Accounting
Service – Cleveland Center (DFAS-CL) established  SBP  coverage  on
his  new  wife’s  behalf.   His  retired  pay  records  erroneously
reflected the applicant’s name and date of birth (31 Mar 34) as the
eligible  spouse  beneficiary.   SBP  premiums  were   continuously
deducted from his retired pay until  his  15  Jul  05  death.   The
member’s widow is eligible to receive an SBP annuity of  $644,  but
there is no indication she has applied  and  payment  has  not  yet
begun.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPTR  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:

The applicant responds through her Congressman  stating,  in  part,
that it was her  ex-husband’s  intent  to  have  her  “deemed”  his
beneficiary.  Although her ex-husband never contacted the Air Force
to change his SBP election, he also  never  returned  to  court  to
change the divorce agreement, never elected or attempted  to  elect
any other beneficiary, nor  did  he  leave  the  intent  of  a  new
election or a new beneficiary in his will.  Neither she nor her ex-
husband was ever informed of a valid election “deeming”  letter  or
form.

Her complete submission, with attachments, 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.  The panel notes this case, and others like  it  are  among  the
most distressing and disturbing we are asked to address.   Although
there are undoubtedly good reasons for the  legal  requirements  to
notify DFAS and make a deemed election in a specific time frame and
manner, the application of those legal requirements leads to unfair
situations in a number  of  instances.   These  include  situations
where the premiums are paid with a  clear  understanding  that  the
survivor benefits will go to the ex-spouse, but through no fault of
the ex-spouse, the law  prevents  payments  of  survivor  benefits.
Where there is no competing claim to those benefits,  or  when  the
person with the  competing  claim  consents,  the  panel  generally
corrects the record to prevent an injustice.  However,  when  there
is a person with a legal claim to benefits,  the  panel  (as  here)
usually concludes there  is  no  way  to  correct  the  applicant’s
records without extinguishing another  person’s  legal  rights  and
denies the  application.   If  the  applicant  were  to  provide  a
notarized statement from the legal widow that she relinquishes  all
rights now and forever to the  SBP  annuity,  the  Board  would  be
willing to reconsider her request.

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-
02657  in  Executive  Session  on  10  February  2006,  under   the
provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Aug 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 22 Sep 05.
    Exhibit C.  Letter, AFBCMR, dated 17 Oct 05, w/atchs.
    Exhibit D.  Letter, Congressman Smith, dated 8 Nov 05,
                w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair