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AF | BCMR | CY2006 | BC-2006-00649
Original file (BC-2006-00649.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2006-
00649
                                             INDEX CODE:  137.04

                                             COUNSEL: NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  1 SEPTEMBER 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he made a timely  election  for
former spouse coverage under the Survivor Benefit Plan (SBP).

___________________________________________________________________

APPLICANT CONTENDS THAT:

His divorce decree awards SBP benefits to his former spouse.

In Mar 97, he informed DFAS of his divorce including sending a copy
of his divorce decree.  He also requested that his former spouse be
awarded SBP  benefits.   He  does  not  remember  whether  he  also
submitted a DD Form 2565-1, Survivor Benefit  Plan  (SBP)  Election
Statement for Former Spouse Coverage at that time.  The  error  was
brought to his attention when he  inquired  about  changes  to  SBP
coverage during the current SBP open enrollment.

In support of his request, applicant provided a DD Form  2656-1,  a
copy of their marriage certificate,  and  a  copy  of  his  divorce
decree.

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

___________________________________________________________________

STATEMENT OF FACTS:

The member and his former spouse married on 2 Mar 74.   The  member
elected spouse only SBP  coverage  based  on  a  reduced  level  of
retired pay prior to his 1 Dec 91 retirement, and his former spouse
concurred in the election.  The parties divorced on 11 Mar  97  and
the divorce decree ordered that his spouse remain the former spouse
beneficiary under the SBP.   However,  neither  submitted  a  valid
election change during  the  first  year  following  the  date  the
divorce was finalized.  The applicant married his current spouse on
10 Dec 00, but he did not notify the finance center of  the  change
in his martial status nor request coverage be  established  on  his
new wife’s behalf.  The SBP data at the finance center continues to
reflect his former spouse’s  date  of  birth  (9  Apr  54)  as  the
eligible spouse beneficiary and premiums for her coverage  continue
to be deducted from the member’s retired pay.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPRT  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:

On 17 Apr 06, the Air Force evaluation and two advisory opinions on
cases similar to the applicant’s were forwarded for his review and
comment within 30 days.  As of this date, no response has been
received by this office (Exhibit C).

___________________________________________________________________

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  recommendation  of
USAF/JAA and adopt the rationale expressed as  the  basis  for  our
conclusion that the applicant has not been the victim of  an  error
or injustice.  Neither the  servicemember  nor  the  former  spouse
submitted a valid election within the one-year period  required  by
law  to  establish  former  spouse  coverage.   However,   if   the
applicant’s  current  spouse   provides   a   notarized   statement
relinquishing her potential entitlement to  the  SBP  annuity,  the
Board may be  willing  to  reconsider  the  applicant’s  appeal  in
consideration of this evidence.  In view of 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 Docket Number BC-2006-
00649 in Executive Session on 15 June 2006, under the provisions of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Marcia Jane Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Feb 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 29 Mar 06.
    Exhibit C.  Letter, AFBCMR, dated 17 Apr 06, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair


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