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AF | BCMR | CY2006 | BC-2006-01562.dpc
Original file (BC-2006-01562.dpc.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-01562
            INDEX CODE:  137.04
      XXXXXXX                     COUNSEL:  NONE

                                  HEARING DESIRED:       NO

MANDATORY CASE COMPLETION DATE:  23 NOVEMBER 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not aware of the one year time period to make a  correction  to
his SBP.

In support of the application, the applicant provided a  copy  of  his
Divorce Judgment and DD  Form  2656-1,  SBP  elections  statement  for
former spouse coverage.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former spouse and the applicant divorced  15  December  1999.  The
divorce judgment ordered the  SBP  to  be  continued  for  his  former
spouse.  In December 2003, he married his current spouse and  by  law,
after one year, if either the applicant  or  former  spouse  does  not
submit a valid former election then  the  current  wife  automatically
becomes entitled to the applicant’s SBP. The  applicant  continues  to
have SBP deducted from his retired pay and his account still  reflects
his former spouse as the eligible beneficiary.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR indicates since the  request  involves  two  potential  SBP
beneficiaries.  No recommendation is provided (Exhibit B).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 3 August 2006, the board forwarded  the  applicant  copies  of  the
memorandums  from  HQ  USAF/JAA  and  HQ  AFPC/DPPRT  which  will   be
considered in the processing of her application (Exhibit C.)

A copy of the Air Force evaluation was forwarded to the applicant on 3
August 2006 for review and comment within 30 days.  As of  this  date,
this office has received no response (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 recommendation of  HQ  USAF/JAA
and adopt the rationale expressed as the basis for our  decision  that
the applicant has failed to sustain his burden that  he  has  suffered
either an error or injustice.  Neither the applicant  nor  the  former
spouse submitted a valid election within the one-year period  required
by law to establish former spouse coverage.  Although the  AFBMCR  has
the authority, it should not rule on a dispute between  two  claimants
to a benefit that only one of them can receive.   Furthermore,  it  is
not appropriate for the Board to adjudicate such a dispute since  that
task is more properly left to the courts.  However, if the applicant’s
current  spouse  submits  a  notarized  statement  relinquishing   her
entitlement to the SBP, the Board may be  willing  to  reconsider  the
applicant’s appeal in consideration of this evidence.  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 Docket  Number  BC-2206-
01562 in Executive Session on 5 October 2006, under the provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Ms. Kathy L Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 March 2004, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 5 July 2006.
    Exhibit C.  Letter, AFBCMR, dated 3 August 2006, w/atchs.
    Exhibit D.  Letter, AFBCMR, dated 3 August 2006.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]

Office of the Assistant Secretary

AFBCMR
1535 Command Dr, EE Wing, 3rd Flr
Andrews AFB MD 20762-7002

XXXXXXX

XXXXXXX

XXXXXXX

Dear XXXXXXX

      Reference your application, AFBCMR BC-2006-01562, submitted
under the provisions of AFI 36-2603 (Section 1552, 10 USC).

      After careful consideration of your application and military
records, the Board determined that the evidence you presented did not
demonstrate the existence of material error or injustice.
Accordingly, the Board denied your application.

      You have the right to submit newly discovered relevant evidence
for consideration by the Board.  In the absence of such additional
evidence, a further review of your application is not possible.

      BY DIRECTION OF THE PANEL CHAIR





                                                       GREGORY E.
JOHNSON
                                                             Chief
Examiner
                                                 Air Force Board for
Correction
                                                       of Military
Records

Attachment:
Record of Board Proceedings






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