RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02913
            INDEX CODE:137.00

            COUNSEL:  FLORIDA DEPT. OF VET
                          AFFAIRS

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  25 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 was ordered by the court to  maintain  SBP  on
her behalf.

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

_________________________________________________________________

STATEMENT OF FACTS:

The servicemember and the applicant were married on  31 October  1964.
He elected spouse and child coverage under the  SBP  prior  to  his  1
October 1980 retirement.  Their youngest child  lost  eligibility  for
the SBP due to age in June 1989.  The servicemember and the  applicant
were divorced 24 May 1999.  The servicemember  did  not  elect  former
spouse coverage on the applicant’s behalf.  The servicemember  married
R. on 24 July 1999, but did not request the finance  center  establish
SBP coverage on her behalf.  The servicemember died on 26 August 2005.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT  states  the   marital   separation/settlement   agreement,
incorporated in the divorce decree indicates the servicemember  agreed
to maintain the SBP on the applicant’s behalf.  However, there  is  no
evidence the applicant submitted a deemed election with  the  required
time  limit,  notwithstanding  the  attempts  in  2002  to   establish
garnishment of the servicemember’s retired pay.   The  servicemember’s
retired  pay  records  erroneously  reflected  the  applicant  as  the
eligible  spouse  beneficiary  and  SBP  premiums  were   continuously
deducted from his retired pay until his  26 August  2005  death.   His
widow (R.) is  eligible  to  receive  the  SBP  annuity  however,  the
payments have not begun.  AFPC/DPPRT further states since the  request
involves  two  potential  SBP  beneficiaries,  no  recommendation   is
provided (Exhibit B).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 21 November 2005, the Board staff forwarded the applicant copies of
memorandums from HQ USAF/JAA and AFPC/DPPRT which will  be  considered
in the processing of her application (Exhibit C).

The  applicant’s  counsel  reviewed  the  advisories  and  states  the
applicant,  based  on  the   information   she   received   from   the
servicemember and DFAS, believed she was the beneficiary for the SBP.

Counsel states it appears the burden has been  placed  on  the  former
spouse to know the intent of Congress and cite the laws pertaining  to
SBP.  The advisories did not address how the former spouse was to gain
access to this knowledge, thereby implying the former spouse was  held
to a higher ground than the military member  even  though  the  former
spouse was not in the military and did not  have  access  to  military
legal advice.

Counsel further states, based on the facts and the personal  statement
of the applicant, the Board should consider the benefit of  doubt  and
find in favor of the applicant (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 do not take issue  with
the  applicant’s  contention  that  her  divorce  decree  ordered  her
deceased former husband to provide  former  spouse  coverage  for  her
under the SBP, but he did not do  so.   This  is  indeed  regrettable.
However, since neither the applicant nor her deceased  former  husband
took the necessary actions to ensure she was  provided  former  spouse
coverage under the SBP within the one-year period in which they  could
have done so, it appears that the applicant has no  legal  entitlement
to  the  relief  sought.   Specifically,  as  noted  by   the   Chief,
Administrative Law Division, Office of the Judge Advocate General,  in
his memorandum of April 20, 2004, on the subject, there are  a  number
of court decisions by both state and  federal  judiciaries  that  have
held that, despite the divorce  decree  requiring  former  spouse  SBP
coverage, in the absence of any election making the former spouse  the
annuity beneficiary, the current spouse becomes the designated  spouse
beneficiary of the  SBP  annuity  after  one  year  of  marriage.   In
deference to the referenced court decisions  and  the  fact  that  the
widow of the deceased  former  member  is  his  legal  beneficiary  by
operation of law, we do not find the failure of  the  deceased  former
member to comply with the terms of their divorce decree sufficient  to
perpetuate  an  injustice  against  the  current  spouse.    This   is
especially true since  the  applicant  could  have  timely  taken  the
necessary actions to ensure she would get the coverage  agreed  to  in
the divorce decree without the assistance or concurrence of her former
deceased husband.  We are not unsympathetic to her dilemma.   However,
in the absence of a showing that the applicant is legally entitled  to
the relief sought or a waiver of entitlement from the current  spouse,
we conclude she has failed to sustain her burden of establishing  that
she is the victim of either an error or injustice.

_________________________________________________________________

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-
2005-02913 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 10 Sep 05, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPRT, dated 24 Oct 05.
      Exhibit C. Letter, AFBCMR, dated 21 Nov 05, w/atchs
      Exhibit D. Letter, Counsel, dated 15 Dec 05.




                             KATHY L. BOOCKHOLDT
                             Panel Chair