ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03852
            INDEX CODE:  110.00
       (DECEASED)      COUNSEL:  MR. CHESTER H. MORGAN
            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

In the applicant’s request for  reconsideration,  she  requests  her  former
late husband’s records be corrected to reflect he  made  a  timely  election
for former spouse coverage under the Survivor Benefit Plan (SBP).

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STATEMENT OF FACTS:

The applicant and the servicemember were married on 6 Jul 68.  Prior to  the
servicemember’s 1 Aug 84 retirement, he elected child  only  coverage  under
the SBP based on full retired pay.  During the open enrollment  period  from
1992 - 1993, he added spouse coverage to his existing child  only  coverage.
The servicemember and applicant were divorced on 11 May  01  and  the  court
order awarded the SBP benefits to the applicant.  There was no  evidence  in
the servicemember’s records to indicate that  either  the  servicemember  or
the applicant submitted an election to change the SBP coverage  from  spouse
to former spouse.  He remarried on 13 Aug 01.  The  servicemember’s  records
did not reflect that he notified the Defense Finance and Accounting  Service
(DFAS) of the change in his marital status.  The servicemember  died  on  29
Apr 03.  His current widow has been receiving an SBP annuity since Aug 03.

The applicant's request to have her former late-husband’s records corrected
to reflect he made  a  timely  election  for  former  spouse  coverage  was
considered and denied by the Board on 20 Jul 04.  For an accounting of  the
facts  and  circumstances  surrounding  the  applicant's  request  and  the
rationale of  the  earlier  decision  by  the  Board,  see  the  Record  of
Proceedings, with Exhibits, at Exhibit H.

On 19 Jul 05, the applicant filed a complaint in the  U.S.  District  Court
for the District of  Colorado,  alleging,  inter  alia,  that  the  Board’s
decision was arbitrary, capricious, and without basis in fact and law.  The
applicant agreed to stipulate to a dismissal  of  the  Federal  court  case
without prejudice, if the AFBCMR would agree to again review  the  case  in
light of two recent court cases, King v. United States and Holt  v.  United
States.

Applicant's complete submission, with attachments, is at Exhibit I.

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AIR FORCE EVALUATION:

HQ USAF/JAA in response to the  Board’s  request  for  an  advisory  opinion
regarding several court  decisions  by  the  US  Court  of  Federal  Claims,
recommends the Board refrain from reconsidering this matter until the  Board
obtains an advisory opinion from DFAS and that the decedent’s current  widow
be afforded an opportunity to provide comments to the Board.

The complete JAA evaluation is at Exhibit J.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant,  in  response  to  the  HQ  USAF/JAA,  memorandum
stresses three points.  First counsel states the Air Force is bound  by  the
administrative record in the previous denial.  There is implication  in  the
JAA opinion that there is some question as  to  whether  DFAS  received  the
divorce decree prior to the decedent's death.  The  Air  Force  has  at  all
times  during  consideration  of  this  case  had   full   access   to   the
administrative record and the opportunity  to  get  the  facts  straight--an
opportunity not available to the applicant, who can only guess what the  DAS
and Air Force records contain, unless they are  disclosed  to  her  as  they
should have been.  Had applicant's case gone to trial the  government  would
have been bound by the agency record as it  existed  in  the  previous  BCMR
denial.  Secondly, counsel states DFAS' action  to  change  the  beneficiary
created a manifest injustice, accomplishing  what  the  decedent  could  not
have done himself.  The injustice stems from DFAS' application  of  statutes
to effect a change in the beneficiary  actually  designated  by  the  member
unprompted by a single manifestation if intent  by  the  decedent.   On  the
contrary, DFAS' action was contradicted  by  his  last  clear  statement  of
intent and a divorce decree.  Had he fulfilled  his  obligations  under  the
divorce decree he would have been prohibited from cutting the applicant  off
from SBP without a court order.  It is more than passing  ironic  that  DFAS
takes the position that an untimely submitted divorce decree  which  imposes
a  legal  requirement  to  continue  SBP  coverage  for  the  applicant   is
insufficient for DFAS purposes to be enforced for her benefit,  but  can  be
used to change the record to her detriment.   Thirdly,  counsel  states  the
BCMR's mandate to correct  injustices  is  the  power  to  do  equity.   The
draconian application of the one-year rule means that "other than  the  rare
circumstance in which the service member informs his former spouse  that  he
intends to violate the divorce decree, the latter will always find  out  too
late to satisfy the deemed election provision, unless  she  were  to  ignore
the service member election provision as meaningless surplusage."   In  this
regard, the reasoning of the court in Holt  v.  United  States  is  apropos.
According to  its  latest  rendition  of  the  facts,  DFAS  was  hardly  an
"unwitting participant in an inequity; it was rather  the  deus  ex  machina
without  which  the  applicant  would   be   receiving   her   court-ordered
entitlement to SBP.  Counsel concludes that JAA  proceeds  on  the  apparent
and erroneous assumption that  the  law  forecloses  BCMR  relief.   In  the
previous application,  the  recommendation  from  DP  was  to  exercise  the
Board's equitable powers to correct a  clear  injustice.   The  JAA  opinion
recommending against relief, like  DFAS  presently,  adopted  not  merely  a
procrustean approach to the deemed election, but implied that the Board  was
not legally empowered to correct the injustice, especially  where  there  is
another beneficiary.  That objection has been  dissolved  by  the  King  and
Holt cases.

Counsel's complete response is at Exhibit L.

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ADDITIONAL AIR FORCE EVALUATION:

DFAS-CL/DGM states the applicant relies  on  the  Holt  and  King  cases  to
support her request for award of an SBP annuity.  DFAS believes  both  cases
are distinguishable.  Contrary to the Holt case, there is no record  in  the
present case that DFAS received a request from the former spouse to  enforce
the terms of the divorce decree under  the  Former  Spouses  Protection  Act
(FSPA),  accompanied  by  a  copy  of  the  divorce  decree  and  separation
agreement.  Unlike the Holt case there  is  no  DFAS  record  that  reflects
receipt of correspondence from the former spouse regarding  her  FSPA  claim
or any acknowledgment that the relevant court order  contained  a  provision
regarding SBP  coverage.   The  King  case  is  also  of  little  impact  to
applicant’s  case,  because  the  AFBCMR  has  not  previously  granted  the
applicant’s request for a records correction and is not seeking to  apply  a
subsequent  state court order  that  purports  to  reconcile  the  competing
interests of the former spouse and surviving spouse.

The complete DFAS evaluation is at Exhibit M.

Exhibits N through P are various administrative correspondence  between  the
Board staff, the applicant, and the decedent’s widow.

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INTERESTED PARTY RESPONSE:

On 11 Apr 07, the Air Force Review Boards Agency Legal Advisor notified  the
decedents widow of this application  which  may  affect  her  interests  and
invited her to provide comment.  The current widow  responded  stating  that
she spoke with the applicant’s son and offered to give him the  annuity  she
is receiving to give to the applicant  for  a  short  period  of  time.   In
addition, she  shared  the  life  insurance  proceeds  with  the  decedent's
children.  She expressed concern about losing the benefits she is  receiving
which she believes is lawfully hers.  Her complete submission is at  Exhibit
Q.

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THE BOARD CONCLUDES THAT:

After  careful  reconsideration  of  the   applicant’s   request   and   the
documentation submitted in support of her appeal, we find no evidence of  an
error warranting corrective action in this case and  are  not  persuaded  by
counsel's  assertions  that  the  applicant  has  been  the  victim  of   an
injustice.   In  this  respect,  we  find  no  cogent  evidence   that   the
appropriate documentation required to reflect  former  spouse  SBP  coverage
was received by DFAS, within the  specified  time  period,  as  required  by
statute.  We note counsel's argument that  DFAS  should  have  accepted  the
divorce decree that was purportedly forwarded by  the  applicant  to  effect
former spouse election, since DFAS initiated payments of a  portion  of  his
retired pay upon its receipt.  However,  according  to  DFAS  records,  that
action was not initiated by the receipt of the divorce decree,  but  because
of receipt of  the  appropriate  documentation  provided  by  the  decedent.
Furthermore, we note that SBP annuity has been  granted  to  the  decedent's
widow.  We find reconsideration of DPPTR's original recommendation  that  we
correct the record as suggested inappropriate, simply because taking  action
"to preclude the possibility" of an injustice to  the  applicant  would,  in
our viewpoint, create an injustice  to  another.   Accordingly,  it  is  our
opinion that the applicant has failed to sustain her burden of proof of  the
existence of an error or injustice in this  case.   Regarding  the  specific
request that this case be reconsidered  in  light  of  the  Holt  V.  United
States and King v. United States court  cases,  we  agree  with  DFAS-CL/DGM
that it appears these cases are distinguishable from this particular  AFBCMR
application and we find no basis upon  which  our  determination  should  be
bound by those particular cases.  In view of the above,  we  find  no  basis
upon which to recommend granting the requested relief.

___________________________________________________________________

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-2003-
03852 in Executive Session on 30 January 2008, under the provisions  of  AFI
36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Michael J. Novel, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-
2003-03852 was considered:

      Exhibit H. Record of Proceedings, dated 14 Oct 04, w/atchs.
      Exhibit I. U.S. District Court Stipulation for Dismissal,
            dated 19 Jul 05.
      Exhibit J. Letter, HQ USAF/JAA, dated 17 Feb 06.
      Exhibit K. Letter, SAF/MRBC, dated 28 Feb 06.
      Exhibit L. Letter, Applicant’s Counsel, dated 24 Mar 06.
      Exhibit M. Letter, DFAS-CL/DGM, dated 31 Jul 06, w/atchs.
      Exhibit N. Letter, SAF/MRBC, dated 3 Aug 06, w/atch.
      Exhibit O. Letter, SAF/MRBC, dated 11 Apr 07, w/atchs.
      Exhibit P. Letter, AFBCMR Legal Advisor, dated 11 Apr 07,
            w/atchs.
      Exhibit Q. Letter, Current Widow, dated,1 May 07, w/atchs.
      Exhibit R. Letter, SAF/MRBC, dated 6 Jun 07.




                                             MICHAEL K. GALLOGLY
                                             Panel Chair