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AF | BCMR | CY2006 | BC-2006-01563
Original file (BC-2006-01563.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01563
            INDEX CODE:  137.03

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken that  would  allow  him  to  terminate  his
spouse and child coverage under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of his retirement, he and his wife were separated  and  at
her counsel’s recommendation, she did not  sign  the  SBP  concurrence
statement prior to his retirement.

In support of his appeal, the  applicant  has  provided  copies  of  a
statement from his  SBP  counselor  and  several  pertinent  documents
dealing with his SBP account.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was married and  had  an  eligible  child  when  he  retired
effective 1 September 2005.  He was counseled on the SBP and completed
an election to decline coverage; however, his  wife’s  concurrence  in
his election was not received prior to his retirement.  Absent a valid
election, the finance center established  spouse  and  child  coverage
based on full, retired pay to comply with the law.  The SBP  counselor
provided a copy of the SBP Report on Individual  Personnel  (RIP)  the
applicant signed on 5  July  2005,  acknowledging  he  understood  the
options and effects of his actions pertaining  to  his  SBP  election.
Although the SBP counselor’s role is to brief and assist the member in
making an SBP election, it is ultimately the  member’s  responsibility
to comply with the statutory requirements of the law, by ensuring  the
SBP  counselor  receives  the  spouse’s  written  concurrence   before
retirement.

AIR FORCE EVALUATION:

AFPC/DPPTR contends there is no evidence of error or injustice in this
case and no basis in law for a  spouse’s  written  concurrence  to  be
obtained by a mediated  agreement.   Approval  of  his  request  would
provide him an opportunity not afforded  other  retirees  and  is  not
justified by the facts of this  case.   If  he  divorces,  the  spouse
portion of the SBP may be suspended by providing a certified  copy  of
his final divorce decree to the Defense Finance and Accounting Service
(DFAS).  He may exercise his option under Public Law  (PL)  105-85  to
terminate all SBP participation beginning on 1 September 2007.   DPPTR
recommends denial.

DPPTR’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  states  his  ex-spouse  refused  to  sign  the  SBP  waiver
initially, but in a mediation session she  signed  it  on  23 February
2006.  DFAS refused to accept  the  waiver  and  continued  to  deduct
premiums from his retired pay.  The statement indicating the applicant
had an eligible child is also incorrect as the child belonged  to  the
ex-spouse and was not his.  He  states  they  did  not  have  a  child
together.  He is not requesting full reimbursement of his SBP, he only
requests reimbursement for the  funds  allotted  after  his  ex-spouse
provided the notarized termination request.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

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 the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  He was briefed on his SBP options as evidenced by
his signature and it stands to reason he at least was  made  aware  of
the fact that the law would  provide  full  coverage  for  his  spouse
should his election not include her signature.  In  fact,  it  appears
the relief he is requesting will be available to him  via  Public  Law
105-85 effective 1 September  2007.   Therefore,  in  the  absence  of
evidence to the contrary, 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-
2006-01563  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. Donna Jonkoff, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 May 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 30 Jun 06.
    Exhibit C.  Letter, SAF/MRBR, dated 14 Jul 06.
    Exhibit D.  Letter, Applicant, dated 12 Aug 06.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair


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