RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01754
            INDEX CODE:  137.00
            COUNSEL:  TIMOTHY D. SWANSON
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late former husband’s records be  corrected  to  show  that  he  elected
former spouse coverage under the Survivor Benefit Program (SBP)  naming  her
as the beneficiary.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On or about Dec 18, 2008, the applicant received  notice  the  payments  she
was receiving under the Uniformed Services Former  Spouses’  Protection  Act
from the retired/retainer of her late former spouse were  being  terminated.
Applicant believes there is a survivor plan in  the  name  of  the  deceased
former servicemember, to which she is  entitled,  pursuant  to  the  May  8,
1984, Court Order.

It was ordered that  the  former  spouse  and  ex-wife  of  deceased  former
service  member  receive  one-half  of  all  accrued  or   future   military
retirement benefits held by or for the benefit of the  former  servicemember
under his account through the Air Force  Retirement  program  or  any  other
military retirement program to which the former servicemember was  entitled.
 The custodian of said  retirement  program  was  ordered  to  make  payment
directly to the former spouse.

In support of the application, the applicant submits a  copy  of  her  final
divorce decree and her former spouse's death certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember and the applicant were married on 9  Jan  50.   The
member elected spouse only SBP coverage based on full retired pay  prior  to
his 1 Mar 73 retirement.  The parties divorced on 8 May 84.    At  the  time
of their divorce, the law allowed former spouse coverage, but  only  if  the
member agreed to provide it.  The  parties’  decree  contained  no  language
pertaining to the SBP.   He  timely  notified  the  Defense  Accounting  and
Finance System (DFAS) of the divorce and premium collections  were  stopped.
Although the divorce was not finalized until May 84, the Defense  Enrollment
Eligibility Reporting system (DEERS) reflects the member  remarried  in  Apr
73 and had a confidential marriage (to the same  person)  in  1999.   As  of
this date, she has not applied for SBP payments and is listed  as  his  wife
on the death certificate provided by the applicant.

The payments  owed  to  the  beneficiary  are  $861  for  the  first  month;
increased Dec 08 to $880 (and will be Cost of Living Adjusted annually).

The SBP premium debt plus interest from 1 Mar 86 to the  date  of  death  is
approximately $46,029 ($22K for costs, $25K in  interest).   Interest  would
continue to accrue on the total from the date of death to present.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSIAR states based on guidance by the AFBCMR on  18  Mar  04,  they
are forwarding the request without a recommendation because it involves  two
potential SBP beneficiaries.

The complete HQ AFPC/DPSIAR evaluation is at Exhibit B.

The SAF/MRB Legal Advisor recommends denial.

The Legal Advisor states the servicemember did not take the  steps  to  make
the applicant a former spouse SBP beneficiary within the  one  year  period.
Moreover, there is no divorce decree requiring SBP (perhaps because  it  was
not within court  authority  to  order  it  at  that  time).   The  member’s
surviving spouse became an eligible beneficiary by operation of law  at  the
one year anniversary of their marriage.

The Legal Advisor states if there were no  competing  eligible  beneficiary,
he  might  recommend  correcting  the  record.   He  might  also   recommend
correction of the record if the current spouse gave her  notarized  consent;
however, absent that consent, he sees no  extraordinary  circumstances  that
would support not applying the law in force  at  the  time  of  the  divorce
decree.  In addition, correcting the record in the  manner  requested  would
deprive the member’s surviving spouse  of  benefits  to  which  she  may  be
legally entitled and should the Board decide to grant the request,  a  final
decision should not be rendered until the view of the  surviving  spouse  is
solicited and considered.

The complete SAF/MRB Legal Advisor's evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for  the  applicant  states  a  former  military  spouse  while  not
automatically covered under  the  SBP  coverage  can  obtain  coverage  upon
written request based on a member’s failure or refusal to  provide  coverage
despite a lawful obligation to do so.  The applicant was ordered to  receive
one-half of all accrued or future military retirement benefits held  by  the
former servicemember.  A copy of the order was sent  to  the  Department  of
the Air Force after being entered.  Since the  former  servicemember  failed
to provide SBP coverage as required in  the  aforementioned  Order,  counsel
requests the  record  be  corrected  to  accurately  reflect  former  spouse
coverage under the SBP.

The complete Counsel’s statement 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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant’s
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and recommendation of the SAF/MRB Legal Advisor  and  adopt
his rationale expressed as the basis for our  decision  that  the  applicant
has failed to sustain her burden of proof that she has  suffered  either  an
error or injustice.  However, if the applicant’s widow submits  a  notarized
statement relinquishing her  entitlement  to  the  SBP,  the  Board  may  be
willing to reconsider  the  applicant’s  appeal  in  consideration  of  this
evidence.  In view  of  the  foregoing,  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 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  BC-2009-01754  in
Executive Session on 17 Nov 2009, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. Dick Anderegg, Member
      Mr. Noble K. Eden, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 27 Apr 09, w/atchs.
      Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 9 Jun 09.
      Exhibit C.  Letter, SAF/MRB (Legal Advisor), dated 28 Jul 09.
      Exhibit D.  Letter, AFBCMR, dated 29 Jul 09, w/atchs.
      Exhibit E.  Letter, Applicant’s Counsel, dated 19 Oct 09.



                                   BARBARA A. WESTGATE
                                   Panel Chair