RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:               DOCKET NUMBER: BC-2007-04088
                                INDEX CODE:         137.00
      XXXXXXXXX                     COUNSEL:  NO
                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her fathers records be corrected to  terminate  spouse  only  coverage
under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her father has not had contact with his spouse for over 15  years  and
financially he can no longer  afford  SBP  premiums.   Her  father  is
currently a resident at  a  nursing  home  and  is  eligible  for  the
institutional  care  program  and  Medicaid  benefits.   However,  his
monthly responsibility exceeds his current income due to  his  monthly
SBP payment.  The $95.47 payment is withheld from his gross  pay  when
determining his responsibility  of  nursing  home  care  and  Medicaid
expenses.  Unfortunately he suffers from dementia  and  is  unable  to
speak for himself after suffering from a debilitating stroke  over  15
years ago.  At the time of his stroke he was separated from  his  wife
(Mexican national) for about six months.  The marriage was  registered
in Guadalajara on 20 June 1987.  They have had no  communication  with
his wife since his illness despite several attempts  to  contact  her.
She requests special consideration and/or review of  his  case  as  he
lacks funds available to file for divorce.

In support of her request, the applicant provided a personal letter, a
copy of an Irrevocable Qualified Income Trust, correspondence from the
State of Florida Department of Children and Families,  copies  of  his
Retiree Account Statement, Social Security Benefits  Statement  and  a
Department of Veterans Affairs (DVA) benefits increase letter.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member was married and elected spouse-only  coverage  based
on full retired pay prior to his  1  February  1978  retirement.   The
parties divorced  on  30  April  1984.   The  applicant  remarried  on
20 June 1987.  There is no record that the former member  submitted  a
DD Form 2656-2,  Survivor  Benefit  Plan  (SBP)  Termination  Request,
required to terminate his SBP coverage during the disenrollment period
authorized by PL 105-85.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial.  DPPRT states an SBP election may not
be arbitrarily terminated as long as the beneficiary remains eligible.
 Public Law 105-85, 18 November  1997,  authorized  members,  who  are
retired more than two years as  of  17 May  1998,  a  one-year  window
through which they could disenroll from the SBP (17 May 1998 - 16  May
1999).  Retirees had  to  complete  AF  Form  2656-2  and  obtain  the
beneficiaries notarized consent.  Disenrollments  were  effective  the
month following the Defense Finance and Accounting Service - Cleveland
Center’s (DFAS-CL) receipt of a properly completed  termination  form,
postmarked no later  than  16  May  1999.   There  was  no  refund  of
premiums.  There is no record the applicant submitted a DD Form 2656-2
required to terminate his SBP coverage during the disenrollment period
provided by PL 105-85.  It  is  unfortunate  the  member  has  had  no
contact with his wife, but there's no provision in PL 105-85 to  waive
the covered spouse’s concurrence or that permits  disenrollment  based
on a missing spouse.  Furthermore, there is no basis in law to  permit
a participant to arbitrarily terminate spouse coverage, regardless  of
his wife's whereabouts, and it will be inequitable to  other  retirees
in similar situations, to provide him an additional opportunity.   The
applicant may wish to pursue civil action on her incompetent  father's
behalf to legally terminate his marriage.   A  certified  court  order
could then be submitted to the DFAS to suspend spouse  coverage  under
the SBP.  There is no evidence of an Air Force error or  injustice  in
this case; therefore, DPPRT recommends the request be denied.

The DPPRT evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating the primary basis for this request  is
to relieve her father of an expense he  can  no  longer  afford.   His
monthly responsibility to qualify for the institutional  care  program
and Medicaid benefits exceeds his current income due  to  his  monthly
SBP  payment  of  $95.47.   He  has  been  declared  incompetent   and
incapacitated by a court of law, has been institutionalized  for  over
15 years and is unable to care for and represent himself.  She is  his
court-appointed trustee and authorized to take the  administrative  or
judicial  steps  necessary  to  protect  his  eligibility  for  public
assistance.  Unfortunately, she is  restricted  both  financially  and
legally with regard to applying for a  divorce  on  his  behalf.   She
requested legal assistance in seeking a divorce but was advised  there
was no guarantee it would be granted.  Attempts to  reach  his  spouse
via the Mexican and U.S. consultants have  proven  unsuccessful.   She
can provide witnesses that his estranged wife has made  no  effort  to
contact her father in the past 15 years despite  several  attempts  to
get in contact with her.  If his wife was interesting  in  getting  in
contact with her father, there's no reason  why  she  would  not  have
contacted her.   Thus,  trying  to  obtain  any  notarized  statements
regarding  disenrollment  from  SBP  is  highly   unlikely,   if   not
impossible.  Her only expectation and hope is that her  father,  a  20
year armed forces veteran, and the system are  not  victimized  by  an
absentee spouse who has abandoned him and clearly has demonstrated  no
interest in his welfare.

The complete response is at Exhibit D.

_________________________________________________________________

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.    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  relief  requested  is  warranted.    Applicant's
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the Air Force office of primary  responsibility.
We therefore adopt the  rationale  expressed  as  the  basis  for  our
decision that the applicant has failed to sustain her burden of  proof
of the existence of either an error or a injustice.  Absent 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  error  or  an  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 Docket  Number  BC-2007-
04088 in Executive Session on 26 June 2008 under the provisions of AFI
36-2603:

                  Ms.  Kathy L. Boockholdt, Panel Chair
                  Mr.  Alan A. Blomgren, Member
                  Ms.  Marcia Jane Bachman, Member

The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 12 December 2007, w/atchs.
  Exhibit B.  Letter, HQ AFPC/DPPTR, dated 4 February 2008.
  Exhibit C.  Letter, SAF/MRBC, dated 8 February 2008.
  Exhibit D.  Letter, Applicant, dated 21 February 2008, w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair