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AF | BCMR | CY2006 | BC-2005-02867
Original file (BC-2005-02867.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2005-02867
                       INDEX CODE:  137.00

                       COUNSEL: None

                                                HEARING DESIRED: Not
  Indicated

MANDATORY CASE COMPLETION DATE:  19 MAR 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former late husband's record be corrected to  reflect  he  elected
former spouse coverage under the Reserve  Component  Survivor  Benefit
Plan (RCSBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She should receive the survivor benefits because  she  is  the  former
spouse of the deceased servicemember and he did not remarry.

She had no knowledge that such a  benefit  existed.   Her  late-former
husband never told her about this benefit when they were married or at
the time of their divorce.

She did not know she had one year after the divorce to apply for  this
benefit.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and late servicemember were married on 16 February 1974.
 On  30  June  1997,  the  late  servicemember  was  notified  of  his
eligibility to participate in the RCSBP.  On 22  September  1997,  the
servicemember submitted an election for Option  C,  Immediate  Annuity
for Spouse and  Child.   The  applicant  and  the  servicemember  were
divorced on 16 September 1999.  The servicemember  died  on  27  March
2005.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/PSD states the servicemember and the applicant were  divorced  in
September 1999, and the SBP coverage for spouse and child was  changed
to child only.  Furthermore, it appears the applicant, in part, relies
on the transcript of the divorce  hearing  which  contained  questions
from her attorney discussing dividing present value equally.  This  is
not evidence of intent for former spouse coverage to  be  included  in
the final order.  There is no court order  included  directing  former
spouse coverage under the SBP.   The  applicant  stated  her  attorney
failed to be certain the process was completed  within  the  one  year
requirement.  They recommend denying the requested relief.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  states  that  she
never knew the survivor benefit existed, so therefore  she  could  not
apply for it within the one year window following their divorce.   She
further requests consideration in correcting the RCSBP election of her
former late-husband (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  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 the recommendation of  the  Air
Force and its rationale as the  basis  for  our  conclusion  that  the
applicant has not been the victim of an error or injustice.   In  this
respect, it appears that neither  the  servicemember  nor  the  former
spouse submitted an valid election within the one-year period required
by law to establish former spouse  coverage.   There  is  insufficient
evidence presented indicating the servicemember’s  intent  to  provide
former spouse coverage for the applicant.  Therefore, 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 AFBCMR Docket Number BC-
2005-02867 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 13 Sep 05, w/atchs.
      Exhibit B. Letter, HQ ARPC/PSD, dated 12 Oct 05, w/atch.
      Exhibit C. Letter, SAF/MRBR, dated 14 Oct 05.
      Exhibit D. Letter, Applicant, undated, w/atchs.




                             KATHY L. BOOCKHOLDT
                             Panel Chair

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