RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-02725
            INDEX CODE:  137.04

            COUNSEL:  REBECCA L. GALVAN
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  13 JANUARY 2008

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APPLICANT REQUESTS THAT:

Her former late-husband’s records be corrected to reflect he elected  former
spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The divorce decree ordered that her former husband provide coverage for  her
under the SBP.  The SBP premiums were deducted  from  her  former  husband’s
retired pay until his death on 23 Dec 05.  The government’s  requirement  of
a certified copy of the divorce decree  to  pay  retirement  benefits  would
indicate the government also had notice of her election and her  entitlement
to benefits under the SBP.

In support of her request, applicant provided her attorney’s letter, a  copy
of her divorce decree, a copy of her marriage certificate,  and  her  former
husband’s death certificate.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Air Force indicated the member and the applicant were married on 29  Aug
64 and the member elected spouse  and  child  SBP  coverage  based  on  full
retired pay prior to his 1 Apr  87  retirement.   The  youngest  child  lost
eligibility in Jul 87 due to age.  The parties divorced on  17  Dec  87  and
the divorce  decree  ordered  that  the  member  maintain  the  SBP  on  the
applicant’s behalf;  however,  neither  party  submitted  a  valid  election
change during the required time limit.  The member remarried on  1  Sep  89,
but there  is  no  evidence  he  requested  that  the  Defense  Finance  and
Accounting Service – Cleveland Center (DFAS-CL) establish  SBP  coverage  on
his new wife’s behalf.   The  member’s  retired  pay  records  continued  to
reflect the applicant’s date of birth     (15 Jun 46), but his new  spouse’s
name and Social Security number was annotated by the finance center  as  the
eligible spouse beneficiary.  SBP premiums were deducted from  the  member’s
retired pay until his 23 Dec 05 death.   The  member’s  widow  is  currently
receiving a monthly annuity of $1,441.

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AIR FORCE EVALUATION:

Based on guidance by the AFBCMR on  18  Mar  04,  DPPRT  is  forwarding  the
request without a recommendation  because  it  involves  two  potential  SBP
beneficiaries.

The DPPRT evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 8 Nov 06, the Board staff forwarded the counsel and the applicant  copies
of the Air Force evaluation and memorandums from  HQ  USAF/JAA  and  SAF/GCM
for review and comment (Exhibit C).

Applicant’s counsel requests copies of all documents by which the Air  Force
determined that her client gave inadequate notice of her entitlement to  the
SBP, of which benefits were awarded her (and paid for by  her)  pursuant  to
the divorce decree.  Apparently  the  Air  Force  determined  they  received
adequate notice to pay her client her portion of the court-ordered  military
retirement benefits, it appears incongruous for the Air Force  now  to  take
the position that such notice was inadequate to  pay  to  her  the  survivor
benefits which were awarded within the  same  decree.   This  is  especially
true as on a  monthly  basis,  payments  were  withheld  from  her  client’s
portion of retirement payments.  This decision seems to rely solely  on  the
Air Force’s definition of appropriate notice under  the  applicable  statute
and works a great injustice.

The Counsel’s complete response is at Exhibit D.

ADDITIONAL AIR FORCE EVALUATION:

The SAF/MRB Legal Advisor reviewed this application and recommended  denial.
 Despite the Dec 87 court order directing the member to make  the  election,
federal law makes the election unavailable when the deemed election  is  not
timely effected.  If there were not a  surviving  eligible  beneficiary,  he
would recommend correcting the record, but there is.  Accordingly,  he  sees
no extraordinary circumstances that would support not enforcing  the  deemed
election requirement given the fact correcting  the  record  in  the  manner
requested will deprive the former member’s widow of benefits  to  which  she
is legally entitled.  If the panel is  inclined  to  grant  the  remedy,  it
should not reach a final decision until the view of the  member’s  widow  is
solicited and considered.

A copy of the SAF/MRB evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

In a response dated 20 Mar 07, the applicant’s counsel states, in  part,  to
supply opinions regarding such apparent denial  does  not  substantiate  the
precise basis for this individual claim.  This especially is true as the so-
called basis for denial is your claim there was  insufficient  notice  under
the statute.  What you seem to be saying is that the notice  was  sufficient
for the federal government to pay  her  client  her  portion  of  retirement
benefits but somehow fell short of the amount of notice  necessary  for  her
client to receive her court-ordered SBP  benefits.   Is  a  decree  that  is
received and signed by the service member not  a  “deemed  election”  unless
you say it is?  This begs the question about why you would take the  monthly
SBP premiums from her client (from her portion of retirement benefits)  then
say she is ineligible to  receive  the  benefits  she  paid  for.   Did  the
federal Government close its eyes when it took money from her  client  on  a
monthly basis for almost 20 years?

Counsel’s complete response is attached at Exhibit G.

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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 the SAF/MRB 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  servicemember  nor
the former spouse  made  a  timely  deemed  election  during  the  timeframe
required by law to establish  former  spouse  coverage.   Consequently,  the
decedent’s 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.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the  Board  considered  Docket  Number     BC-2006-
02725 in Executive Session on 7 June 2007, under the provisions of  AFI  36-
2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Alan A. Blomgren, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2006-
02725 was considered:

    Exhibit A.  DD Form 149, dated 26 Aug 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 12 Oct 06.
    Exhibit C.  Letter, AFBCMR, dated 8 Nov 06, w/atchs.
    Exhibit D.  Letter, Counsel, dated 7 Dec 06.
    Exhibit E.  Letter, SAF/MRB Legal Advisor, dated 22 Feb 07.
    Exhibit F.  Letter, AFBCMR, dated 27 Feb 07, w/atchs.
    Exhibit G.  Letter, Counsel, dated 20 Mar 07.




                                             KATHY L. BOOCKHOLDT
                                             Panel Chair