RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01000
            INDEX CODE:  137.04
            COUNSEL:  NONE
            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her now deceased former spouse’s military record be changed to show he
made a valid Survivor Benefit Plan (SBP) election  for  former  spouse
coverage in her behalf.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Upon his retirement, he had elected full SBP coverage.  After 21 years
of marriage, they were divorced four years after  his  retirement  and
the divorce decree stated she would retain SBP benefits.  She received
no counseling  or  instruction  regarding  SBP  at  the  time  of  his
retirement.  After his death, she inquired  about  SBP  and  was  told
there was no record of the divorce decree on  file  with  the  Defense
Finance and Accounting Service (DFAS).  She has been informed that the
decedent's current spouse was the SBP beneficiary.

In support of her appeal, the  applicant  has  provided  copies  of  a
divorce decree and a death certificate.

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

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STATEMENT OF FACTS:

The parties were married on 4 June 1970 and the member elected  spouse
and child SBP coverage based on a reduced level of retired  pay  prior
to his 1 September  1981  retirement.   The  parties  divorced  on  26
December 1985 and in  the  marital  settlement  agreement  the  member
agreed to designate the applicant as beneficiary to the SBP.  However,
neither party submitted a valid election  within  one  year  of  their
divorce.  The member remarried on 28 December 1985  and  on  17  April
1998, he requested that DFAS remove the applicant and add his  current
wife to the SBP.  DFAS complied with  the  member’s  request  and  SBP
premiums were deducted from his retired pay until his 30 December 2006
death.  His widow is currently receiving  a  monthly  SBP  annuity  of
$602.

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AIR FORCE EVALUATION:

AFPC/DPPRT, based on guidance by the AFBCMR on 18 March 2004, forwards
this  request  without  a  recommendation  because  it  involves   two
potential SBP beneficiaries (Exhibit B).

The AFBCMR Legal Advisor recommends denial.  The legal advisor  states
despite the 1985 marital settlement agreement directing the member  to
make the election, federal law makes the election unavailable when the
deemed election is not timely effected.  The fact  the  applicant  was
not aware of the legal requirement does not prevent it from having its
congressionally intended effect.  Further, the member  clearly  wanted
the SBP payment to go to his second wife, a step, which may  not  have
been fair  or  consistent  with  his  obligations  under  the  marital
settlement agreement, but an option that Congress expressly allows.

The complete AFBCMR Legal Advisor evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant states she was the Air Force wife who often had to  function
as a single parent due to her husband’s frequent permanent  change  of
station (PCS) moves.  Further, when she would bring the family to  the
new duty station, she would have to  start  at  the  bottom  again  in
finding employment as there was no Military Spouse Preference at  that
time.  She feels as though she  has  earned  the  right  to  what  was
promised in her divorce settlement.  She contends  the  Former  Spouse
Protection Act (FSPA) seems to be a misnomer as it is hard to  believe
that Congress would deprive a person of benefits agreed  upon  and  in
good faith in a legal order of the court.  She was not briefed at  the
time her former husband retired, or by her attorney  (whom  she  feels
did not have the information either).  Since she was not aware of  the
one-year requirement and no correspondence is sent or required by  the
Air Force on these matters, it only seems fair that a member should be
required to inform DFAS upon deeming a new  beneficiary.   She  states
that the comments to the Board that it should not consider such  cases
(dual spouse) but direct the applicant’s to the  civil  court  system,
would be a wasted effort on her part.  As  state  law  cannot  preempt
Federal law any action on her part would be wasted effort, even if she
could afford to do so.  She requests the Board approve her application
as she was the spouse during the military career and a victim of a law
that was not very well known or communicated to the parties that would
be protected from what appears to be a loophole in the FSPA.

Applicant’s complete response is at Exhibit D.

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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 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  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
requiring corrective action by this Board.  Therefore, in the  absence
of evidence to the contrary, we find no compelling basis to  recommend
granting the relief sought in this application.

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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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-01000 in Executive  Session  on  26  September  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 pertaining to AFBCMR Docket  Number
BC-2007-01000 was considered:

    Exhibit A.  DD Form 149, dated 14 February 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 26 April 2007, w/atchs.
    Exhibit C.  Letter, AFBCMR Legal Advisor, dated 12 June 2007.
    Exhibit D.  Letter, Applicant, dated 17 August 2007.



                                   KATHLEEN F. GRAHAM
                                   Panel Chair