RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01875
                 INDEX CODE:  137.01
      XXXXXXXXXX (Deceased)  COUNSEL:  William H. McPherson

      XXXXXXXXXX HEARING DESIRED:  No
_________________________________________________________________


APPLICANT REQUESTS THAT:

Her former deceased husband’s records be altered  so  that  she  would
receive a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her former husband obtained an illegal divorce in Mexico. He was never
a resident of Mexico and not  eligible  for  a  divorce  through  that
country. His remarriage is invalid and the SBP benefits belong to her.

In support, she submits a copy of Special  Power  of  Attorney  (POA),
which expired on 6 August 1971, as well as other documentation.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Title 10, USC, Section 1447, defines a widow as the surviving wife  of
a person who, if not married to the  person  at  the  time  he  became
eligible for retired pay, was married to him for  at  least  one  year
immediately before his death, or  is  the  mother  of  issue  by  that
marriage.

The applicant and the decedent were married on 17 December 1957.   The
decedent obtained a divorce in Mexico  in  1969  and  remarried  on  3
September 1969. He declined SBP coverage  prior  to  his  1 June  1975
retirement. He later elected full spouse SBP coverage during the  open
enrollment period  authorized  by  Public  Law  101-189,  effective  1
November 1992, naming his second wife as the spouse  beneficiary.   He
died on 12 May 1997 and the second wife is receiving the SBP annuity.

HQ AFPC/JA  informally  advised  the  AFBCMR  Staff  that  unless  the
divorced party can prove, either in a court of the  country  in  which
the divorce was obtained or in a United States court, that the foreign
divorce was not in compliance with the laws of  the  foreign  country,
the divorce cannot be voided. Some individuals will obtain  a  divorce
in a foreign country because certain countries, contrary to the United
States, do not require the spouse being divorced to be  notified.  The
burden falls on the divorced spouse to prove that the foreign  divorce
was not in compliance with that country’s laws.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Retiree Services Branch, HQ AFPC/DPPTR, reviewed the appeal
and advises that the POA cannot be used  to  verify  her  claim.  That
document is normally only necessary when the appointee does not have a
dependent identification (ID) card to obtain medical  care  for  minor
children. If legally married to the decedent at the time the  POA  was
issued, the applicant should have been  entitled  to  a  dependent  ID
card.  The applicant offers no explanation  as  to  why  the  POA  was
necessary.  Additionally, the  applicant’s  claim  that  she  was  not
legally divorced from the decedent can be determined only by  a  court
of law. Absent a legal decision to support her claim, her  eligibility
for the SBP annuity as the decedent’s widow cannot  be  satisfactorily
established. There is no basis in law to grant relief; therefore,  the
Chief strongly recommends the request be denied.   The  Chief  advises
that, should the Board grant relief,  approval  should  be  contingent
upon the applicant’s providing sufficient legal documentation that the
decedent’s divorce and remarriage were invalid.

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

The Chief, Military Personnel Law, HQ AFPC/JA, also reviewed the  case
and concurs with DPPTR.  Foreign divorces are voidable but  not  void,
and then only if determined by a court of competent  jurisdiction.  It
should be considered how much time has passed  between  the  time  the
applicant had knowledge of the divorce and the time she took action to
challenge it. There is no evidence that the  applicant  only  recently
became aware of the foreign divorce and/or her  husband’s  remarriage.
The Chief advises it is not appropriate for him to declare the divorce
invalid or change the decedent’s military records.  Once  a  court  of
competent jurisdiction rules on this matter, he would  be  pleased  to
reconsider this request.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to the applicant  on
2 November 1998 for review and comment within  30  days.  As  of  this
date, no response has been received by this office.
_________________________________________________________________

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 probable error or injustice. After a thorough  review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that her former deceased husband’s records should be altered
so that she would receive an SBP annuity. 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. Unless a court of competent jurisdiction  rules  the
divorce  invalid,  favorable  action  would  not  be  appropriate.  We
therefore agree with the recommendations of the Air  Force  and  adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain her burden of having  suffered  either
an error or an injustice. In view of the above and  absent  persuasive
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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 under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. David C. Van Gasbeck, Member
                  Ms. Ann L. Heidig, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 29 Jun 98, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 8 Oct 98.
   Exhibit C.  Letter, HQ AFPC/JA, dated 16 Oct 98.
   Exhibit D.  Letter, AFBCMR, dated 2 Nov 98.




                                   BARBARA A. WESTGATE
                                   Panel Chair