RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02993
            INDEX CODE:  137.00

            COUNSEL:  R. SCOTT BUHRER

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her  late  former  spouse’s  records  be  corrected  to  reflect   her
entitlement to former spouse coverage under the Survivor Benefit  Plan
(SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Defense Finance and Accounting Service (DFAS) failed to  recognize
her request for former spouse coverage under the SBP.

In  support  of  her  appeal,  the  applicant  provides  an   expanded
statement, an Amended Judgment  of  Divorce,  a  Consent  Judgment  of
Partition of Community Property, a Military  Qualifying  Court  Order,
statements from her attorney, and a death certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember, a Reservist, and the applicant were  married
on 28 Sep 63 and, on 30 Jan 84, he elected spouse and  child  coverage
under the Reserve Component SBP (RCSBP) based  on  full  retired  pay,
when he became eligible to receive retired pay.   The  youngest  child
lost eligibility on 30 Jun 89 due to age.   The  former  servicemember
attained age 60 and his retired  pay  commenced  on  4  Sep  00.   The
parties divorced on 5 Mar 02 and in the Amended Judgment  of  Divorce,
dated 23 Nov 05, he was ordered to maintain the applicant as  the  SBP
beneficiary.  There is no evidence he submitted a  valid  election  to
change spouse to former  spouse  coverage  during  the  required  time
following their divorce.  The Defense Enrollment Eligibility Reporting
System (DEERS) records show the former servicemember remarried  on  11
Nov 03, but he did not notify the finance center of the change in  his
marital status or request that spouse coverage be established  on  his
spouse’s behalf.  On 2 Nov  06,  DFAS  –  Cleveland  Center  (DFAS-CL)
received the applicant’s request for a deemed election;  however,  she
failed to include a  copy  of  the  divorce  decree  and  the  Amended
Judgment of Divorce and DFAS  did  not  honor  her  request.   DFAS-CL
records continued to erroneously reflect the applicant’s name and date
of birth as the eligible spouse  beneficiary  and  SBP  premiums  were
deducted from the former servicemember’s retired pay until  his  death
on 5 May 07.  His widow is eligible  to  receive  an  SBP  annuity  of
$778.00, but she has not yet applied for the benefit.

By letter, dated 30 Jan 08, the  Agency  Legal  Advisor  notified  the
widow of the deceased former servicemember of the pending case  before
the Air Force Board for Correction of Military Records  (AFBCMR),  and
its possible affect  on  her  interests.   He  requested  she  provide
information she believed was relevant to the Board’s  decision,  or  a
negative response, within 30 days.  As of this date, no  response  has
been received by this office (Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

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

A complete copy of the AFPC/DPSIAR evaluation is at Exhibit B.

The Agency Legal Advisor indicates that, in his view,  the  Board  has
the legal authority to correct the record as requested, especially  if
it determines the legal requirements to make a  deemed  election  were
met.  It still  places  the  panel  in  the  position  of  ending  the
entitlement of one spouse to grant the remedy to the  ex-spouse.   The
contrary legal analysis is that since there was  a  legally  effective
deemed election which the panel is merely  recognizing  by  correcting
the record, there was in fact no legal entitlement to extinguish.

In the Legal Advisor’s view, this is a case where the panel  may  find
extraordinary circumstances supporting the requested relief.  There is
no completely satisfactory solution or clear  answer.   He  recommends
the panel not concern itself primarily with legal analysis, but decide
the case according to its view of the facts and situation.  The  legal
arguments can be addressed if and when the case proceeds to court.

A complete copy of the Legal Advisor’s evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Legal Advisor’s advisory opinion and  furnished
a response indicating, that it clearly supports the conclusion that an
error or injustice has occurred in this case.

Counsel noted the  Legal  Advisor’s  attempt  to  contact  the  former
servicemember’s widow to notify her of the pending case, but  received
no response.  Counsel states she did not respond because she is  fully
aware the former servicemember was obliged by court order to elect and
did elect survivor benefits  for  the  applicant,  and  she  does  not
dispute the fact she  lacks  entitlement  to  the  benefits.   Counsel
believes the circumstances of the case are indeed extraordinary, which
warrants granting the requested relief.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

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 error or injustice.  After a thorough review of the facts
and circumstances of this  case,  we  are  persuaded  that  corrective
action is warranted.  In our view, the legal  requirement  to  make  a
deemed election within a specified time period was met in  this  case.
Although the consequence of  affording  the  applicant  the  requested
relief may prove unfavorable to another individual, we agree with  the
Legal Advisor that there are extraordinary circumstances in this  case
that support granting relief.  Accordingly, we  recommend  the  former
servicemember’s records be corrected as set forth below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the FORMER SERVICEMEMBER, be corrected to show that  on  2
Nov 06, he elected former spouse coverage under the Reserve  Component
Survivor Benefit Plan (RCSBP) based on full retired  pay,  naming   as
former spouse beneficiary.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-02993 in Executive Session on 6 Nov 08, under the  provisions  of
AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Janet I. Hassan, Member
      Mr. James L. Sommer, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 1 Aug 08, w/atchs.
     Exhibit B.  Letter, AFPC/DPSIAR, dated 8 Nov 07.
     Exhibit C.  Letter, Legal Advisor, dated 30 Jan 08.
     Exhibit D.  Letter, Legal Advisor, dated 17 Jul 08.
     Exhibit E.  Letter, SAF/MRBR, dated 18 Jul 08.
     Exhibit F.  Letter, counsel, dated 14 Aug 08.




                                   LAURENCE M. GRONER
                                   Panel Chair









AFBCMR BC-2007-02993




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 , be corrected to show that on 2 November 2006, he
elected former spouse coverage under the Reserve Component Survivor
Benefit Plan (RCSBP) based on full retired pay, naming Linda S.
Segreto as former spouse beneficiary.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency