RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01199
            INDEX CODE:  137.00
      COUNSEL:  NONE

            HEARING DESIRED:  NOT INDICATED

MANDATORY COMPLETION DATE:  19 OCTOBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

Examiner’s Note:  The applicant is the first former spouse of  the  deceased
service-member.

Her late former husband’s records be  corrected  to  show  that  he  elected
former spouse coverage under the Survivor Benefit Program (SBP)  naming  her
as the beneficiary.
_________________________________________________________________

APPLICANT CONTENDS THAT:

She was married to the deceased during his entire  active  duty  career  (22
years - they were married a total of 29 years).  She was the  homemaker  and
mother of their three children.

In  support  of  the  application,  the  applicant  submits   her   personal
statements, a copy of a newspaper obituary, a copy of a  resume,  copies  of
letters of  appreciation,  a  copy  of  a  letter  to  the  Defense  Finance
Accounting Service, Cleveland (DFAS-CL), a copy of a letter from DFAS-CL,  a
copy  of  the  former  service  member’s  divorce  decree  from  his  second
marriage, a copy of his retirement order, an  official  copy  of  his  death
certificate, and a copy of their marriage certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

According to the information provided by the Air  Force  office  of  primary
responsibility, the applicant and member were married on 29 May 52  and  the
member elected spouse and child SBP  coverage  based  on  full  retired  pay
prior to his 1 Oct 73 retirement.  The member remarried on  10  Jul  81  and
submitted a request to remove  the  applicant  from  the  SBP  and  add  his
current spouse to the plan in Oct 81.

The member and his second wife divorced on 28 Mar  00  and  in  the  divorce
decree she relinquished ownership to the SBP.   On  12 Apr  00,  the  member
requested that DFAS-CL remove his  former  second  spouse  as  the  eligible
beneficiary and add  the  applicant  to  the  SBP.   DFAS-CL  suspended  the
member’s spouse coverage and monthly premiums, but did not establish  former
spouse coverage.  The member died on 20 Feb 07.

Examiner’s Note:  The law in effect at the time of the  applicant’s  divorce
did not allow retired members to provide SBP coverage, even if  they  wished
to voluntarily continue their former spouse’s eligibility.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial.  DPPRT  states  eligibility  to  receive  a
spouse SBP annuity terminates upon divorce.  Former  spouse  coverage  under
the SBP was not an option for retired members until passage  of  Public  law
(PL) 98-94, 24 Sep 83.  Subsequently, former spouse coverage with  the  same
costs and provisions as spouse coverage was  permitted  following  enactment
of PL 99-145 (8 Nov 85).  The legislation authorized a  one-year  period  (8
Nov 85 – 7 Nov 86) for SBP participants to elect coverage for  their  former
spouses.  Such former spouse election became effective  1  Mar  86,  or  the
first day of the month following receipt of a valid election, if later.

DPPRT states there is no error or injustice in this case  and  no  basis  in
law to approve this request.  However, if the Board’s decision is  to  grant
relief, the member’s record should be corrected to show that on 1 Mar 86  he
elected to change SBP  spouse  to  former  spouse  coverage  based  on  full
retired pay.  An effective date of 1 Mar 86 is appropriate as  this  is  the
first date former spouse coverage could  have  been  established  under  the
same costs and conditions as spouse coverage.

HQ AFPC/DPPRT’s evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response dated June 22, 2007, the applicant states her former  spouse
was very  sorry  and  surprised  when  his  request  to  name  her  his  SBP
beneficiary was denied.  His health had failed and he was unable to keep  up
with the SBP laws.  Her husband paid SBP premiums for 28 years and  now  has
no beneficiary.  She is 78½ years of age and has never remarried.

The 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an error or an injustice.  We note the applicant's  contentions
that the former servicemember would have elected her to remain the  eligible
SBP beneficiary after their divorce; however, neither party was  aware  that
this  option  existed.   After  thoroughly   reviewing   the   documentation
submitted with this appeal, the Board majority agrees it  is  reasonable  to
believe the deceased former servicemember had intended for the applicant  to
be the recipient of  his  SBP  annuity.   In  this  respect,  the  applicant
demonstrated his intent  to  provide  coverage  for  his  former  spouse  as
evidenced by his actions taken  on  12  Apr  00,  as  indicated  above.   In
consideration of  the  totality  of  the  circumstances,  we  recommend  his
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 Mar 1986, he elected to  change
spouse coverage to former spouse coverage based on full  retired  pay  under
the Survivor Benefit Plan, naming APPLICANT as former spouse beneficiary.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 26 Sep 07, under the provisions of AFI 36-2603:

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

By majority vote, the Board recommended granting the requested relief.   Ms.
Hassan voted to deny the  application  but  does  not  desire  to  submit  a
Minority Report.  The following documentary  evidence  was  considered  with
AFBCMR BC-2007-01199:

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Apr 07, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPPR, dated 1 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Jun 07.
    Exhibit D.  Letter, Applicant, 22 Jun 07.






            KATHLEEN F. GRAHAM
            Panel Chair


AFBCMR BC-2007-01199




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 APPLICANT, be corrected to show that on 1 Mar 1986, he elected to
change spouse coverage to former spouse coverage based on full retired pay
under the Survivor Benefit Plan, naming as former spouse beneficiary.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency