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AF | BCMR | CY2006 | BC-2005-02726
Original file (BC-2005-02726.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02726
            INDEX CODE:137.00

            COUNSEL:  NONE

                                           HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  4 MAR 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former late-husband’s records be corrected to reflect  he  made  a
timely election for former spouse coverage under the Survivor  Benefit
Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her former  late-husband  agreed  that  she  should  receive  the  SBP
annuity.  Also, their divorce decree directed her former-late  husband
make the necessary arrangements to ensure that she would  receive  the
SBP.  He failed to do so prior to his death.

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

_________________________________________________________________

STATEMENT OF FACTS:

At the time of the servicemember’s retirement on 1 April 1976, he  and
the applicant were married and he declined to  elect  spouse  coverage
under the SBP.  The servicemember  and  the  applicant  were  divorced
28 January 1992.  The servicemember married B. on 6 May 1995.  He died
on 11 April 2005.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states the laws that controlled  SBP  precluded  a  married
servicemember, who declined spouse coverage at the time of retirement,
from providing SBP former  spouse  coverage  following  divorce.   The
servicemembers may provide former spouse coverage during an authorized
open enrollment.   Retired  servicemembers  were  permitted  to  elect
former spouse coverage during the  one-year  open  enrollment  periods
authorized by Public Laws (PLs) 101-189 (1 April 1992 through 31 March
1993) and 105-261 (1  March  1999  through  29  February  2000).   The
enrollment packets, advising retired servicemembers of the opportunity
to make an election for SBP as well as the forms, were included in the
February 1992 and January 1999 editions of the Afterburner,  News  for
USAF Retired Personnel.  These  issues  and  others  published  during
those  periods  were  sent   to   the   correspondence   address   the
servicemembers had provided to the finance  center  and  it  contained
information on  points  of  contacts  for  retirees  to  use  to  gain
additional information.

AFPC/DPPRT further states the law at the time of  the  servicemember’s
retirement did not require the spouse to concur with the SBP election.
 AFPC/DPPRT can neither confirm nor deny the applicant’s claim of non-
notification; however, her claim  would  have  terminated  upon  their
divorce.  Although their divorce decree mentioned the SBP, the  spouse
coverage had to have been elected on the  applicant’s  behalf  as  the
servicemember’s wife in order for him to be eligible to  elect  former
spouse coverage.  SBP is similar to commercial life insurance in  that
an individual must elect to participate and pay the required  premiums
in order to be  covered.   Therefore,  they  recommend  the  requested
relief be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 October 2005, a copy of the Air Force evaluation was forwarded to
applicant, for review and response.  As of this date, no response  has
been received by this office.

_________________________________________________________________

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
servicemember initially declined to elect SBP spouse coverage prior to
his retirement.  Therefore,  based  upon  the  laws  that  govern  SBP
coverage following divorce, it appears the  provisions  pertaining  to
former spouse SBP coverage in the divorce  decree  are  unenforceable.
Nonetheless, the servicemember had several opportunities to elect  SBP
coverage for the  applicant  during  the  authorized  open  enrollment
periods and failed to do so.  In view of this,  we  find  no  evidence
that it was ever the intent of the servicemember to  provide  coverage
for the applicant.  Therefore, in  the  absence  of  evidence  to  the
contrary, 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 AFBCMR Docket Number BC-
2005-02726 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 1 Aug 05, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPRT, dated 3 Oct 05.
      Exhibit C. Letter, SAF/MRBR, dated 7 Oct 05.




                             KATHY L. BOOCKHOLDT
                             Panel Chair

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