RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01626
                 INDEX CODE:       137.01, 137.04
                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased ex-husband’s records be corrected to show that he elected
former spouse Survivor Benefit Plan (SBP) coverage.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her ex-husband’s records should reflect her as the former  spouse  and
beneficiary as ordered in their divorce decree.  She was not  informed
by the Defense Finance and  Accounting  Service  (DFAS)  to  submit  a
deemed election even after she  submitted  the  Divorce  Decree  which
ordered that she remain the beneficiary of  the  SBP.   She  contacted
DFAS several times after the divorce  to  ensure  she  was  still  the
beneficiary  and  was  reassured  that  she  remained   the   eligible
beneficiary.

In support of her request, applicant provided a personal  response,  a
copy of an Obituary, a copy of her deceased  ex-husband's  Certificate
of Death, and a copy of their Final Divorce Decree.

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased former member and the applicant married on 12 Feb 57, and
the former member elected spouse and child SBP coverage, based on full
retired pay prior to his 1 Sep 80 retirement.  The parties divorced on
1 Aug 89, and the divorce decree ordered that the applicant remain the
designated  SBP  beneficiary;  however,  neither  submitted  a   valid
election change during the required time  limit.   Defense  Enrollment
Eligibility Reporting System (DEERS) records show  the  former  member
remarried on 3 Sep 93, but he did not request that DFAS establish  SBP
coverage on  his  second  wife’s  behalf.   The  youngest  child  lost
eligibility in Jun  94.   The  former  member’s  retired  pay  records
erroneously reflected the applicant’s date of birth  as  the  eligible
spouse beneficiary and SBP premiums were deducted from his retired pay
until his 9 Jan 07 death.  His widow is eligible  to  receive  an  SBP
annuity of $1,010.00, but she has not yet applied for the benefit.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT has no  recommendation.   DPPRT  states,  based  on  the
AFBCMR’s 18 Mar 04 guidance, they are forwarding this request  without
a recommendation, because it involves two potential SBP beneficiaries.

The DPPTR evaluation, with attachments, is at Exhibit B.

The SAF/MRBC Legal  Advisor  recommends  denial.   The  Legal  Advisor
states in part, that despite the 1989 court order directing the former
member  to  make  the  election,  federal  law  makes   the   election
unavailable when the deemed election is not effected.   The  applicant
claims that she was not aware of this requirement  and  discussed  her
SBP status with DFAS on several occasions before she learned of the so-
called deemed election requirement.  She also mentions her poor health
and financial condition and the fact that she paid the SBP premium for
many years.  If there were not a competing  eligible  beneficiary,  or
that  beneficiary  would  consent  to  the  change  via  a   notarized
statement, he would recommend correcting the record.  But there is  no
extraordinary circumstances here 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  current  spouse
of benefits to which she is legally entitled.  He  reminds  the  Board
that if it is inclined to grant the relief,  it  should  not  reach  a
final decision until the view of the current spouse is  solicited  and
considered.

The Legal Advisor’s evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that the additional  documentation  she  provided
should make it easier for the Board to understand her point  of  view.
She also states that from 1980 until his death her deceased ex-husband
paid the SBP premiums in lieu of spousal support, and thereafter,  she
paid the premiums.  She  provides  a  personal  statement,  copies  of
checks, documentation pertaining  to  spousal  support  payments,  and
background information related to their divorce proceedings.

The applicant’s complete response is at Exhibit D

The deceased member’s widow provided a notarized statement stating  in
part, that she and her deceased husband had an understanding that  the
ex-wife (who is the applicant), would receive the SBP benefits.   Upon
finding out that the ex-wife has not received the  SBP  benefits,  she
was asked to consent to having the beneficiary changed from  her  name
to the ex-wife.  She does so, only if other benefits  or  entitlements
are not jeopardized by this consent.

The complete submission, with attachments 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 injustice.  We  took  notice  of  the  applicant's
complete   submission   in   judging   the   merits   of   the   case.
Notwithstanding the opinions rendered by the  SAF/MRBC  Legal  Advisor
and HQ USAF/JAA, after thoroughly reviewing the circumstances of  this
case, it is the opinion of the Board that  the  former  spouse  should
receive the SBP annuity.  The  Board  notes  the  current  spouse  has
provided a notarized statement relinquishing her  entitlement  to  the
SBP.  The Board is persuaded it was the applicant’s intent to  provide
his former spouse the SBP annuity and is satisfied his current  spouse
is fully aware  she  is  relinquishing  her  entitlement  to  the  SBP
annuity.  In view of the above and the absence of persuasive  evidence
to the contrary, the board recommends granting the relief sought.


_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 2 August 1989,  he
elected former spouse coverage under the Survivor Benefit  Plan  (SBP)
based on full retired pay, naming DONNA G. RYAN, as the former  spouse
beneficiary.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2007-
01626 in Executive Session on 18 December 2007, under  the  provisions
of AFI 36-2603:

                  Ms. Kathleen F. Graham, Panel Chair
                  Mr. Michael J. Novel, Member
                  Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 May 07, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 11 Jul 07.
   Exhibit C.  Letter, AFBCMR, dated 18 Oct 07, w/atchs
   Exhibit D.  Letter, Appicant, undated, w/atchs.
   Exhibit E.  Letter, Spouse, dated 23 Nov 07, w/atch.





                                   KATHLEEN F. GRAHAM
                                   Panel Chair
      AFBCMR   BC-2007-01626












      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 to APPLICANT, be corrected to show that on 2 August 1989, he
   elected former spouse coverage under the Survivor Benefit Plan (SBP)
   based on full retired pay, naming, FORMER SPOUSE, as the former spouse
   beneficiary.









                                             JOE G. LINEBERGER

            Director

            Air Force Review Boards Agency