RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03260
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His records be corrected to reflect he  made  a  timely  election  for
former spouse coverage under the Survivor Benefit Program (SBP).

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APPLICANT CONTENDS THAT:

He was ordered by the court to establish SBP coverage for  his  former
spouse.

In support  of  his  appeal,  the  applicant  provides  copies  of  an
application for a marriage license, documentation  pertaining  to  his
SBP election for former spouse coverage, and a divorce decree.

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

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STATEMENT OF FACTS:

The applicant and his former spouse were married on 19 May  90.   They
divorced on 14 Jul 04 and the divorce decree ordered that  his  former
spouse remain the SBP beneficiary.  However, there was no evidence the
finance center received a request from the former spouse deeming  that
an SBP election be made on her behalf during the first year  following
the date of their divorce.   The  applicant  and  his  current  spouse
married on 11 May 05, the former spouse remarried on 16 Nov 06,  prior
to her 55th birthday, and the applicant retired on 1 Jan 07.  Prior to
retiring, he was counseled on the options and effects of  the  SBP  by
the SBP counselor and he elected spouse and child SBP  coverage  based
on full retired pay.  The Defense Finance  and  Accounting  Service  -
Cleveland Center (DFAS-CL)  established  the  coverage  the  applicant
elected as required by law.

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AIR FORCE EVALUATION:

AFPC/DPPTR indicates that since the request involves two potential SBP
beneficiaries, no recommendation is provided.

A complete copy of the Air Force evaluation is at Exhibit B.

The Air Force Review Board Agency’s (AFRBA) Legal  Advisor  recommends
denial indicating that despite the Feb 04 court  order  directing  the
applicant to  make  the  election,  federal  law  makes  the  election
unavailable when the deemed election is not timely effected.  The  ex-
spouse’s ignorance of the legal requirement does not prevent  it  from
having its congressionally intended  effect.   If  there  were  not  a
competing eligible beneficiary, or if the current spouse would consent
in a notarized document, he would  recommend  correcting  the  record.
Absent one of those two events, he sees 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 applicant’s current spouse of benefits  to  which  she  is
legally entitled.  He would remind the panel if they are  inclined  to
grant the remedy, it should not reach a final decision until the  view
of the current spouse is solicited and considered.

A complete copy of the Legal Advisor’s evaluation,  with  attachments,
is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations, with attachments, were  forwarded
to applicant on 19 Dec 07 for review and response within 30 days.   As
of this date, no response has been received by  this  office  (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's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the  rationale  provided  by  the  AFRBA  Legal
Advisor.  In this respect, we took note of  the  divorce  decree  that
ordered the applicant to provide SBP coverage for his  former  spouse.
However, we also noted that federal law makes the election unavailable
when the deemed election is not timely effected, and no  evidence  has
been presented which shows a deemed election was made within the  one-
year  time  period  mandated  by  the  law.   We  are  aware  that  in
extraordinary circumstances, it is within the authority of  the  Board
to correct a record if it finds it necessary to prevent  an  error  or
injustice.  However, in this case, we agree  with  the  Legal  Advisor
that there are no extraordinary circumstances here  that  support  not
enforcing the deemed election  requirements  given  the  fact  that  a
correction of the record in the manner  requested  would  deprive  the
applicant’s current spouse of the benefits to  which  she  is  legally
entitled.  In view of the foregoing, and in the absence of  sufficient
evidence to the contrary, we agree  with  the  recommendation  of  the
Legal Advisor and adopt his rationale as the basis  for  our  decision
that the applicant has failed to sustain his burden of establishing he
has suffered either an error or an injustice.  Accordingly, we find no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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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-
2007-03260 in Executive Session on 14 Feb 08, under the provisions  of
AFI 36-2603:

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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Aug 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIAR, dated 30 Oct 07.
    Exhibit C.  Letter, Legal Advisor, dated 11 Dec 07, w/atchs.
    Exhibit D.  Letter, AFBCMR, dated 19 Dec 07.




                                   MARCIA JANE BACHMAN
                                   Panel Chair