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AF | BCMR | CY2007 | BC-2007-01448
Original file (BC-2007-01448.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01448
            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 timely Survivor  Benefit  Plan  (SBP)  election  for  former
spouse coverage on her behalf.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her former spouse died on 25 April  2007  and  she  was  told  he  had
terminated his SBP election made during their divorce.  On 3 May 2007,
she informed the Beale AFB Casualty Assistance Representative that she
wished to apply for her SBP entitlement as a former spouse.

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

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

_________________________________________________________________

STATEMENT OF FACTS:

The member and the applicant were married  on  21  July  1962  and  he
elected spouse and child SBP coverage based on full, retired pay prior
to his 1 September  1979  retirement.   The  parties  divorced  on  31
December 1990 and in the divorce decree, the member agreed to elect an
SBP annuity for the benefit of the applicant.  There  is  no  evidence
either party submitted a  valid  former  spouse  election  during  the
required time following their  divorce.   Premiums  for  the  spouse’s
portion of the SBP coverage continued to be deducted from the member’s
retired pay until July 1991, when the Defense Finance  and  Accounting
Service (DFAS) retroactively suspended spouse coverage  and  issued  a
refund of overpaid premiums.  Records show that the member married his
current spouse on 17 July 2003 but he  did  not  notify  DFAS  of  the
change in his marital status nor request coverage  be  established  on
his current spouse’s behalf.

_________________________________________________________________

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.

DPPRT’s complete evaluation is at Exhibit B.

SAF/MRB (AFBCMR Legal Advisor) recommends denial.   The  AFBCMR  legal
advisor states despite the 1990 court order directing  the  member  to
make the election, federal law makes the election unavailable when the
deemed election is not timely effected.

MRB’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the SAF/MRB evaluation was forwarded to the applicant on  18
July 2007 for review and comment within 30 days.   As  of  this  date,
this office has received no response.

_________________________________________________________________

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 injustice.  After a  thorough  review  of
the  evidence  of  record  and  applicant’s  submission,  we  are  not
persuaded that the decedent’s records should be changed  to  make  the
applicant an eligible former spouse SBP beneficiary.  We note  neither
the applicant, nor the former spouse filed the necessary SBP  election
applications that would have provided the former spouse  SBP  coverage
within the one-year time frame allotted them to do so.  Therefore,  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, and 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-
2007-01448 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 was considered:

    Exhibit A.  DD Form 149, dated 4 May 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 5 June 2007.
    Exhibit C.  Letter, SAF/MRB, dated 27 June 2007.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair

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