RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-01714
            INDEX CODE 137.01  137.02
  XXXXXXXXXX (Deceased)      COUNSEL:  None

  XXXXXXXXXX     HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband's records be corrected to reflect he elected Survivor
Benefit Plan (SBP) coverage for her.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant states, under penalty of perjury, that she was not  notified
that her husband had declined coverage for her

Applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant and the service member were married on 11 May 63.  Prior  to
his disability retirement, effective 12 May 77, he elected child  only
SBP coverage.  He  died  on  12  Jan  78  of  cardiac  arrest  due  to
metastatic malignant melanoma at the age of 35.

The applicant remarried on 6  Oct  84  at  age  41  and  received  SBP
payments in behalf of her minor children until they lost  eligibility,
around May 92.  Her second marriage ended when that husband died on 20
Mar 97.

SBP, which was enacted on 21 Sep 72, in accordance with Public Law 92-
425, required  spousal  notification  for  less  than  maximum  spouse
coverage.  The United States (US) Court  of  Claims  has  consistently
ruled that widows who are not notified of  their  spouse's  less  than
maximum election are entitled to full SBP coverage,  such  as  in  the
cases of Barber v. US, Kelly v.  US  and  Dean  v.  US.   The  Defense
Finance  &  Accounting  Service-Denver  Center   (DFAS-DE)   routinely
destroys pay documents six years after the death of  a  retiree  if  a
claim has not been submitted; therefore, there is no evidence that the
required notification was sent to applicant.

In a decision rendered on 21 May  92,  the  Comptroller  General  (CG)
stated that the AFBCMR's actions are not necessary to  create  an  SBP
entitlement because of the government's failure  to  inform  a  spouse
that SBP had not been elected.  The CG explained that  entitlement  to
SBP became subject to the Barring Act (37 USC, Section 3702(b)) at the
time of death and subsequent actions of  the  AFBCMR  do  not  provide
rights that did not previously exist.  The CG  concluded,  "While  the
Correction Board can change facts in order to give rise to a claim, it
cannot, by changing facts, resurrect a claim on which the Barring  Act
has run."  Therefore,  the  Defense  Finance  and  Accounting  Service
(DFAS) was barred from paying an annuity to these widows.

As a result of the CG’s decision, the AFBCMR advised the applicant  by
letter dated 23 Jan 98 that, since the Board lacked the  authority  to
approve claims that were filed more than six years after the death  of
the service member, her case was being returned  and  administratively
closed (Exhibit C).

However, as a result of the 18 May 98 US Court of Claims  decision  in
Pride v. US, claims such  as  the  applicant’s  were  now  within  the
jurisdiction of the AFBCMR notwithstanding  the  decision  of  the  CG
(Exhibit D). The applicant was subsequently advised that her case  was
reopened for presentation to the Board.

_________________________________________________________________

AIR FORCE EVALUATION:

Prior to the Pride v. US ruling, the Chief, Retiree  Services  Branch,
AFPC/DPPTR, had provided the following evaluation:

           Because more  than  six  years  have  elapsed  between  the
member’s death and the applicant’s claim, she will not be paid any SPB
annuity even if the decedent’s records  were  changed  to  reflect  he
elected spouse and child coverage prior to his retirement. By applying
the facts of this case to the CG decision, the  Chief  concluded  that
since the Air Force cannot rebut applicant's sworn statement that  she
was not notified of her husband's SBP election, her entitlement to SBP
arose upon his death on 12 Jan 78.  Therefore, the Barring Act's  six-
year statute of limitations would have run out on 20 Mar 84 and, since
applicant did not apply for SBP until 1997, she would be  barred  from
any payments even if her husband's record is corrected  as  requested.
In the past, their office has recommended favorable  consideration  in
cases in which the widow petitioners claim they were not  notified  of
their sponsor's SBP election and the Air  Force  had  no  evidence  to
refute these  claims.  The  Chief  recommended  that  the  records  be
corrected to show that the  decedent  elected  SBP  spouse  and  child
coverage on 11 May 77 based on full retired pay.

A complete copy of the evaluation is at Exhibit B.

_________________________________________________________________

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.  The  recommendation  by
DPPTR to grant the relief sought was noted. However, after a  thorough
review of the evidence of record and the  applicant’s  submission,  we
are not persuaded that SBP coverage  is  warranted.  In  this  regard,
while the applicant contends she was not notified that her husband had
declined coverage for her, she was receiving SBP payments in behalf of
her minor children until they lost eligibility around  May  92.  Since
her children were receiving SBP benefits, we fail to see how she could
not have known she was not covered as she alleges. There is no  record
that she took any action after her first husband died in 1978  to  try
to change the election to include spouse  coverage.  In  view  of  the
above and absent persuasive evidence to the contrary, we conclude  the
applicant has failed to sustain her burden of having  suffered  either
an error or an injustice. Therefore, 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 on 23 May 2000, under the provisions of AFI 36-2603:

                       Mrs. Barbara A. Westgate, Panel Chair
                       Ms. Kathy L. Boockholdt, Member
                       Mr. Mike Novel, Member

The following documentary evidence was considered:

            Exhibit A.  DD Form 149, dated 2 Jun 97, w/atchs.
            Exhibit B.  Letter, AFPC/DPPTR, dated 11 Dec 97.
            Exhibit C.  Letter, AFBCMR, dated 23 Jan 98, atch.
            Exhibit D.  Court Decision - Pride v. US.





                                   BARBARA A. WESTGATE
                                   Panel Chair