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AF | BCMR | CY2007 | BC-2006-01689
Original file (BC-2006-01689.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01689
            INDEX CODE:  137.01

            COUNSEL:  ROBERT G. BERNSTEIN

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be designated as  beneficiary  under  the  Survivor  Benefit  Plan
(SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was the decedent’s former spouse and as such  was  designated,  by
court order, as the beneficiary of her now deceased,  former  spouse’s
SBP election.  She should be receiving an SBP annuity.

In support of her appeal, the applicant has provided copies  of  their
dissolution of marriage, marriage certificate, SBP  enrollment  forms,
and the deceased member’s death certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The member and the applicant were married on  3  August  1968  and  he
declined SBP coverage prior to his  1  October  1982  retirement.   He
elected spouse only coverage based on full retired pay during the 1992-
93 Open Enrollment  authorized  by  Public  Law  (PL)  101-189.   They
divorced on 24 January 1993 and the divorce decree ordered the  member
to  submit  the  necessary  documents  to  maintain  the  SBP  on  the
applicant’s behalf.  However, neither the  member  nor  the  applicant
submitted a valid former spouse election within the one year  allotted
to them to do so.  The member was remarried on 10 May 1994 and, on  26
August 2005, and requested the Defense Finance and Accounting  Service
(DFAS) remove the applicant, and add his new spouse to the plan.  DFAS
complied with the request and SBP  premiums  for  his  current  wife’s
coverage was deducted from his retired pay until his death  on  22 May
2006.  His widow is currently receiving a monthly SBP annuity of $753.

_________________________________________________________________




AIR FORCE EVALUATION:

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.

AFBCMR Legal Advisor recommends denial.  Despite the 1993 court  order
directing the member to make  the  election,  federal  law  makes  the
election unavailable when the deemed election is not timely effected.

A complete copy of the Legal Advisor’s evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel argues the  legal  advisory’s  contention  is  that  a  deemed
election was not made.  Counsel states the divorce judgment entered on
28 June 1993 incorporates an election of his client  and  incorporates
the certified mail evidence of mailing to DFAS – DE/RT.

Applicant’s complete response is at 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.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of an error or an 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  AFBCMR
Legal Advisor and adopt his rationale as the basis for our  conclusion
that the applicant has not been the victim of an error  or  injustice.
Neither the decedent nor  the  former  spouse  made  a  timely  deemed
election during the timeframe allowed them to  do  so.   Consequently,
the  decedents  widow  is  considered  legally  entitled  to  the  SBP
benefits.  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-
2006-01689  in  Executive  Session  on  30  January  2007,  under  the
provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 May 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 20 Jul 06
    Exhibit C.  Letter, SAF/MRBC, dated 16 Aug 06, w/atchs.
    Exhibit D.  Letter, Legal Advisor, undated.
    Exhibit E.  Letter, Counsel, dated 1 Mar 07, w/atchs.



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