RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-02010
            INDEX CODE:  137.04
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The applicant requests her late husband’s records be  corrected  to  reflect
that he elected former spouse  coverage  under  the  Survivor  Benefit  Plan
(SBP) program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She and her spouse were  married  for  26  years  of  his  military  career;
therefore, she was entitled to the SBP annuity payments upon  his  death  on
June 4, 2005.  She has tried since July 2005 to correct her former  spouse’s
records by contacting the military legal and financial offices.

In support of the application, the applicant  submits  her  husband’s  death
certificate and her divorce decree.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember and the applicant were married on 11 Oct  67.   The
member elected spouse only SBP coverage based on full retired pay  prior  to
his 1 May 93 retirement.  The parties divorced on  6  Aug  93,  and  in  the
marital dissolution agreement, the applicant was awarded a  portion  of  the
member’s retirement pay and  “all  other  benefits  conferred  upon  her  by
reason of her marriage to the  member  during  his  service  in  the  United
States Air Force;” however, the agreement did not specifically  address  the
SBP.

There is no evidence the member submitted a  valid  former  spouse  election
within one year following their divorce.  The finance center  suspended  the
member’s SBP coverage after receiving notification of the parties’  divorce.
 The member remarried on 28 Nov 93, but did not notify  the  finance  center
of the change  in  his  marital  status.   His  current  spouse  became  the
eligible beneficiary on the first anniversary of the marriage.   The  member
died on 4  Jun  05  and  his  widow  began  receiving  monthly  SBP  annuity
payments.  She is currently receiving $1,995 monthly.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPSIAR  has   no   recommendation   because   two   potential   SBP
beneficiaries are involved.

The complete DPSIAR evaluation is at Exhibit B.

The SAF/MRB Legal Advisor recommends denial.  The Legal Advisor  states  the
widow became the SBP beneficiary by operation of law when  the  member  died
in Jun 05 and is currently receiving SBP payments.

In accordance  with  federal  law,  the  member’s  spouse  is  the  eligible
beneficiary unless there has been a legally  effective  election  or  deemed
election (pursuant to a court order).  He  would  recommend  correcting  the
record if there were no competing eligible beneficiary or if  the  surviving
spouse gave her notarized consent.

The complete Legal Advisor’s evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Her court documents state she is entitled to “any  and  all  other  benefits
conferred upon her by reason of her  marriage  to  her  husband  during  his
service in the United States Air Force.”  The Legal Advisor notes no  action
was taken by her former spouse to notify the Air Force  of  what  action  to
take in regard to her or his new wife;  however,  the  same  documents  were
utilized by the Air Force Finance Center to  pay  her  the  awarded  alimony
payments.  It seems reasonable that upon the death of  her  ex-husband,  the
Air Force Finance Center would have made  the  determination  that  she  was
entitled to the survivor benefit annuity.  At the very least, it would  seem
that making the determination to  exclude  survivor  benefits  for  the  un-
remarried spouse of a veteran during his entire military career in favor  of
paying those benefits to a subsequent ex-spouse with less than two years  of
marriage would be cause for concern.

It is noted in the letter  from  the  Deputy  General  Counsel  of  National
Service and Military  Affairs  that  Congress  has  given  the  AFBCMR  wide
latitude to correct an error or remove an injustice.   Respectfully,  it  is
her opinion that this is a clear opportunity for the BCMR to do just that.

The complete response 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.  On the basis of legal counsel provided  to
the Board concerning applications involving competing claimants, we  do  not
find a basis to grant the relief requested in this  instance.  We  note  the
applicant’s belief that the awarding  of  benefits  in  her  divorce  decree
should  have  automatically  entitled  her  to  the  SBP  annuity;  however,
unfortunately, the divorce  decree  does  not  specifically  award  her  SBP
benefits and therefore did not  establish  a  legal  entitlement  where  she
could  have  made  a   deemed   election   for   former   spouse   coverage.
Consequently, the only way for her to have become eligible for  benefits  as
a former spouse would have been  for  her  ex-husband  to  have  established
coverage on her behalf as a former spouse, which  the  record  indicates  he
did not do.  We note the opinion and recommendation  of  the  SAF/MRB  Legal
Advisor that as an operation  of  law  the  member’s  spouse  is  the  legal
beneficiary  unless  a  legally  effective  election  or   deemed   election
(pursuant to a court  order)  has  taken  place.   Therefore,  the  deceased
member’s  widow  became  the  SBP  beneficiary  by  law.   While   we   feel
constrained not to grant relief under  the  current  circumstances,  if  the
deceased member’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.

_________________________________________________________________

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 this application in  Executive
Session on 22 September 2009, under the provisions of AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Debra M. Czajkowski, Member
      Ms. Yvonne T. Jackson, Member

The following documentary evidence was considered AFBCMR BC-2009-02010:

      Exhibit A.  DD Form 149, dated 28 May 09, w/atchs.
      Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 19 Jun 09.
      Exhibit C.  Letter, SAF/MRB (Legal Advisor), dated 6 Aug 09.
      Exhibit D.  Letter, AFBCMR, dated 7 Aug 09, w/atchs.
      Exhibit E.  Letter, Applicant, dated 31 Aug 09, w/atchs.



                                   B. J. WHITE-OLSON
                                   Panel Chair