RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
03676
                                             INDEX CODE:  137.04

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  4 JUNE 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased former spouse’s records be corrected to show  that  he
elected coverage for her under the Survivor Benefit Plan (SBP).

___________________________________________________________________

APPLICANT CONTENDS THAT:

Her former husband was negligent  in  not  reporting  when  he  was
divorced and filing the proper paperwork.  She believes  that  when
establishing the SBP it was Congress’ intent to provide  for  those
spouses who supported the military member for the majority  of  his
or her military career.  She supported her former husband  and  not
being able to receive the $300  she  was  use  to  receiving  would
jeopardize her financial status.  She was not aware of any military
documents that needed to be filed.

In support of her request, applicant provided a personal  statement
and letter, a copy of her former spouse’s Certificate of  Death,  a
copy  of  their   Marriage   License   and   Decree   of   Divorce,
correspondence pertaining to former spouse  entitlements  from  her
Senator, and a letter from  a  casualty  assistance  representative
from Moody AFB.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicated the member and the applicant  were  married
on 1 Jul 56 and the member elected spouse only coverage based on  a
reduced level of retired pay prior to his 1 Sep 75 retirement.  The
parties divorced on 29 Jul 83 prior to passage of Public Law  98-94
(24 Sep 83) which permitted retirees to elect  the  more  expensive
insurable interest coverage for  their  former  spouses.   Although
unenforceable, the  settlement  agreement  contained  the  member’s
agreement to maintain the SBP on the applicant’s behalf.   However,
he did not elect former spouse coverage on her  behalf  during  the
one-year (24  Sep  83  –  23  Sep  84)  open  enrollment.   Defense
Enrollment Eligibility Reporting System (DEERS) records  show  that
the member remarried on 26 Apr 87, but he did not request that  the
finance center establish SBP coverage on his  new  spouse’s  behalf
within the first year following his marriage.  The member’s retired
pay records erroneously reflected the  applicant’s  date  of  birth
(26 Oct 36) as the eligible spouse  beneficiary  and  SBP  premiums
were continuously deducted from his retired pay until his 3 Nov  05
death.  The member’s widow is eligible to receive an SBP annuity of
$412, but she has not submitted an application to date.

___________________________________________________________________

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 8 Feb 06, the Air Force evaluation and two advisory opinions  on
cases similar to the applicant’s were forwarded for her review  and
comment within 30 days. (Exhibit C)

In response to the advisory opinions the applicant  submits  copies
of all the correspondence she received from DFAS.   She  reiterates
the fact that her divorce decree awarded her the benefits until she
either remarries or dies.  She is 69 years old  and  retired.   She
spent almost the entire years of  his  military  service  with  her
former husband.  She would like the Government to  make  sure  that
military personnel are aware of the laws.  She has never  heard  of
the documents that should have been filed out.

The applicant provided a copy of a  30  Dec  05  letter  from  DFAS
indicating that they  received  all  the  documentation  needed  to
establish her SBP annuity, an Annuitant Account Statement, dated 20
Jan 06, and a 26 Jan 06 letter from DFAS indicating that they  have
identified  an  overpayment  of  her  SBP  annuity,   specifically,
overpayment of entitlement from 1–31 Jan 06, in the amount of $412.

Applicant’s complete response, with attachments, is at Exhibit D.

The widow of the service member  indicated  in  a  statement  dated
25 Jan 06, that she recently completed and returned some forms sent
to her by DFAS-CL.  She now understands that  the  forms  were  for
filing for the SBP annuity.  She states that she does not want  the
SBP or the premium refund, and  that  it  rightly  belongs  to  her
husband’s former spouse.  She is requesting the Board abide by  her
husband’s wishes as he has stated to her that his former spouse  be
awarded the SBP annuity.  She requested that  the  Casualty  Office
forward her letter to the AFBCMR and DFAS-CL (Exhibit E).

___________________________________________________________________


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient 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.
Notwithstanding  the  opinions  rendered  by  HQ  USAF/JAA,   after
thoroughly reviewing the circumstances of  this  case,  it  is  our
opinion that the former spouse should receive the SBP annuity.   We
note  the  widow  has  provided  a  statement   relinquishing   her
entitlement to the SBP.  We are persuaded by the evidence presented
that it was the member’s intent to provide his  former  spouse  the
SBP annuity and satisfied that his widow  is  fully  aware  she  is
relinquishing  her  entitlement  to  the  annuity.   Therefore,  we
recommend the records be corrected to the extent  indicated  below.


___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that on 1  March  1986,
under the provisions of Public Law 99-145, he elected former spouse
coverage under the Survivor Benefit Plan, based upon  the  previous
reduced level of retired pay, naming ---------------- as the former
spouse beneficiary.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2005-03676 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

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 23 Nov 05, w/atchs.
     Exhibit B.  Letter, AFPC/DPPRT, dated 10 Jan 06.
     Exhibit C.  Letter, AFBCMR, dated 8 Feb 06, w/atchs.
     Exhibit D.  Letter, Applicant, dated 11 Feb 06, w/atchs.
     Exhibit E.  Letter, Widow, dated 25 Jan 06.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair





AFBCMR BC-2005-03676




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to [Member] be corrected to show that on 1 March
1986, under the provisions of Public Law 99-145, he elected former
spouse coverage under the Survivor Benefit Plan, based upon the
previous reduced level of retired pay, naming --------------------
as the former spouse beneficiary.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency