RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02361
            INDEX CODE:  137.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased former husband's records be corrected to show that  he  elected
former spouse coverage under the Survivor's Benefit Plan (SBP) program.

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APPLICANT CONTENDS THAT:

On his retirement date of 1 Oct 91, her former husband was required to  make
an SBP election.  If he elected to decline SBP, her concurrence  would  have
been required.  She is providing copies of the SBP forms  that  her  husband
completed  prior  to  his  retirement.   Although  the  Retired  pay  system
reflects SBP declined, the SBP Notification and Concurrence  form  (AF  Form
1266) shows no SBP election was made and her signature is not on  the  form.
With  no  SBP  election  annotated,  full  SBP  coverage  should  have  been
established for her unless there was another AF Form 1266 completed.

She and her husband were divorced on 15 May 01 and a military pension  order
was decreed on 20 Nov 01.  Part of the  pension  order  directs  her  former
husband to make SBP provisions for her.  She knows  that  the  court  cannot
make a member elect SBP if it was formally declined  at  retirement,  so  it
was her impression that SBP was  already  in  place  and  only  an  election
change had to be made.  She was not told SBP had not  been  established  for
her until her former husband's death in May  07.   She  is  unaware  of  any
documentation of formal declination of SBP coverage and she does not  recall
concurring with such an election.

She is aware that if her request is approved a  debt  would  be  established
due to owed premium deductions and the debt would have to be  paid  in  full
before she would begin receiving a monthly annuity.

In support of the application, the  applicant  submits  copies  of  the  SBP
Notification and Concurrence, the SBP Election form, the  Data  for  Payment
of  Retired  Air  Force  Personnel  form,  and  her  former  spouse's  death
certificate.

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

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STATEMENT OF FACTS:

The applicant and military service member were married on 19 May 75.   There
is no evidence  the  member  returned  a  92-93  or  99-00  open  enrollment
election form for the  applicant  while  she  was  his  wife.   The  parties
divorced on 16 May 01, and although unenforceable, a military pension  order
incorporated in the divorce decree states that it would be  appropriate  for
the applicant to  be  named  the  sole  beneficiary  to  the  SBP.   Defense
Enrollment Eligibility  Reporting  System  (DEERS)  records  show  that  the
former military member remarried on 6 Dec 04 and died on 19 May 07.
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AIR FORCE EVALUATION:

HQ AFPC/DPSIAR recommends denial.  DPSIAR states there is no  evidence  that
the incomplete SBP election form provided  by  the  applicant  is  the  same
election form the AFAFC received and processed.  DPSIAR opines  the  finance
center would not have updated the member's record to show  he  declined  SBP
coverage unless a valid election form was received.   DFAS-Cleveland  Center
(DFAS-CL) did not properly ensure copies of critical SBP documents, such  as
members'  election  forms  and   spouses'   concurrence   statements,   were
safeguarded and retrievable following Oct 93 when DFAS-CL assumed Air  Force
retired pay responsibilities.  Nevertheless, there  is  a  strong  basis  to
presume AFAFC administratively discharged their  duties  correctly,  and  in
compliance with the laws controlling proper establishment of SBP  elections.
 Furthermore, there is no evidence the member attempted to  seek  correction
to the declination of his SBP and pay associated costs  for  the  ten  years
following his retirement and before his divorce.

The SBP election form provided by  the  applicant  was  incomplete  and  not
initialed by the member.  No valid  spouse  SBP  coverage  was  established;
therefore, former spouse coverage may is not authorized in this case.

The complete DPSIAR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 26  Oct
07 for review and comment within 30 days.  As of this date, this office  has
received no response (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.  The applicant submitted a copy  of  an  AF
Form 1266 signed by the member in 1991.   This  form  neither  declines  nor
elects SBP.  Assuming possible facts most favorable  to  the  applicant,  at
its best possible, the situation could be a presumed  election  of  “spouse”
coverage, not “former spouse.”  At the time of his death, the member  had  a
spouse (not the applicant) who could  have  been  eligible  to  recover  any
“spouse”  benefits.   The  spouse’s  rights  would  be   superior   to   the
applicant’s rights as former spouse.  As the “former spouse,” the  applicant
would not qualify for “spouse” benefits.  To have  created  “former  spouse”
coverage, either the member or the applicant would have had to  notify  DFAS
within one year of the divorce.  They did  not  do  that.   The  applicant’s
best possible opportunity to obtain SBP “former spouse” coverage expired  in
May 2002.   Other  military  members  and  their  former  spouses  are  held
strictly to the one year statute for deemed elections; waiving  the  statute
for this applicant would be unfair for all  the  other  members  and  former
spouses similarly situated.  Therefore, even  if  the  member  had  “spouse”
coverage, it would not apply to  the  applicant  now.   In  the  absence  of
persuasive 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 probable 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 this application in  Executive
Session on 14 Feb 08, under the provisions of AFI 36-2603:

            Ms. Marcia Jane Bachman, Acting Panel Chair
            Ms. Janet I. Hassan, Member
            Mr. Alan A. Blomgren, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2007-02361
was considered:

      Exhibit A.  DD Form 149, dated 23 Jul 07, w/atchs.
      Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 18 Oct 07.
      Exhibit C.  Letter, SAF/MRBR dated 26 Oct 07.




            MARCIA JANE BACHMAN
            Acting Panel Chair