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AF | BCMR | CY2006 | BC-2005-02914
Original file (BC-2005-02914.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02914
            INDEX CODE:137.00

            COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse  coverage
under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The 85th Mission Support Squadron failed to conduct the required  one-
on-one briefing for his  retirement  pay  account  and  SBP  prior  to
retiring. Therefore, DFAS automatically elected spouse  SBP  coverage.
If provided the one-on-one briefing, his election for  the  SBP  would
have been former spouse SBP.

In support of the application,  the  applicant  submits  AF  IMT  330,
Records Transmittal/Request, a copy of his divorce  decree,  DD  Forms
2656 and 2656-1, Data for Payment of Retired Personnel, SBP  Briefing,
and marriage certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and wife  H__  were  married  on  3  August  1975,  they
divorced on 5 July 1997 and an amended order pertaining to division of
military retired  pay  dated  22  September  1999,  ordered  that  the
applicant designate wife H__, as the former spouse beneficiary to  the
SBP. However, there is no  evidence  the  finance  center  received  a
request from wife H__ deeming that an SBP  election  be  made  on  her
behalf during the first year following the date of the amended  order.
The applicant and present wife N__ married on 13 September 1997 and he
retired from Keflavik NAS Iceland on 1 August 2005;  however,  he  was
not briefed on the SBP nor did he complete a valid SBP election  prior
to his retirement. Absent a valid election, DFAS  -  Cleveland  Center
established spouse SBP coverage based on full retired  pay  to  comply
with the law. The applicant and present  wife  N__  were  subsequently
briefed by the Lakenheath RAF SBP counselor on the options and effects
of the SBP and the applicant elected former spouse coverage based on a
reduced level of retired pay (approximately $1647).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR indicates that since the request involves two potential SBP
beneficiaries.  No recommendation is provided.

AFPC/DPPTR’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 11 January 2006, the Board staff provided the applicant with copies
of advisory opinions from the Office of the Judge Advocate General  on
similar cases which would be provided to the Board for consideration.

_________________________________________________________________

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.   The  applicant  contends  his
divorce decree requires him to provide SBP  coverage  for  his  former
spouse.  We note neither the servicemember nor his former spouse  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. As a result, it appears that the former  spouse  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. Therefore, in the absence  of  a  showing  that  the  former
spouse is legally entitled  to  the  relief  sought  or  a  waiver  of
entitlement from the current spouse, we  conclude  the  applicant  has
failed to sustain his burden of establishing that he is the victim  of
either an error or injustice.

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 AFBCMR Docket Number BC-
2005-02914 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 18 Aug 05, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 8 Nov 05.
      Exhibit C. Letter, AFBCMR, dated 11 Jan 06, w/atchs.




                             KATHY L. BOOCKHOLDT
                             Panel Chair

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