RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01318
            INDEX CODE 137.01
  XXXXXXX (Deceased)   COUNSEL:  None

  XXXXXXX   HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband's records be corrected so that she  may  be  eligible
for a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant states she had no knowledge of her SBP eligibility.

Her complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The decedent was married to a previous spouse  and  elected  full  SBP
coverage prior to his  1  Sep  73  retirement.   While  it  cannot  be
determined how the marriage  ended,  records  indicate  premiums  were
terminated effective May 78.

The decedent and the applicant married on 4 Jun 79  and  coverage  and
premiums were reinstated on the first anniversary of  their  marriage.
The marriage was dissolved by a decree issued  on  30 Apr  82  by  the
District  Court,       Judicial  District,           ,   .    However,
premiums continued to be deducted from the  service  member’s  retired
pay until his death on 12 Mar 83.   Ten  years  later,  the  applicant
applied for the SBP  annuity  as  the  member’s  widow.   The  Defense
Finance & Accounting Service (DFAS) denied that claim on  the  grounds
that she was not married to the member at the time of  his  death  and
that her claim was barred by the statute of limitations.

Acting on her petition, the same District Court declared on 27 Oct  95
that her 1982 divorce from the decedent was void ab  initio  and  that
she was married to him at the time of his death. Following the court’s
action, the applicant again filed a claim with DFAS for SBP  payments.
DFAS forwarded her claim to the Department of Defense  (DOD),  Defense
Legal Services Agency,
Defense Office of Hearings and Appeals (DOHA Claim #96073002 dated  15
Oct 96), which ruled that, because her initial SBP claim was  received
more than six years after the member’s death, it was  subject  to  the
Barring Act -- See Below.

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.  In this case, since  the  decedent  had
elected full SBP coverage in 1973 for his first wife and coverage  was
reinstated on the first anniversary of his marriage to the  applicant,
no notification was required.

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 17 Sep 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 D).

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 E). The applicant was subsequently advised that her case  was
reopened for presentation to the Board.

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AIR FORCE EVALUATION:

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

           The Barring Act's six-year  statute  of  limitations  would
have run out on 12 Mar 89 and the applicant  did  not  apply  for  SBP
until 1993.  The Department of Defense, Defense Legal Services Agency,
ruled that because the applicant’s initial SBP claim was received more
than six years after the member’s death, it was subject to the Barring
Act.  Because the facts in this case have not changed  since  the  DOD
ruling, the Chief recommended the case be returned  to  the  applicant
without action.

A complete copy of the evaluation is at Exhibit B.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the evaluation was forwarded to the applicant on 13  Jul  98
for review and comment within 30 days.  As of this date,  this  office
has received no response.

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FINDINGS AND CONCLUSIONS OF THE BOARD:

1.    We find this application was not filed within three years  after
the error was discovered or reasonably  could  have  been  discovered,
thus it is untimely.  After  careful  review  of  all  the  facts  and
circumstances of this case, however, we find it to be in the  interest
of justice to waive timeliness and decide the case on its merits.

2.    Insufficient evidence of error or injustice has  been  presented
to warrant the relief requested by  applicant.  Unlike  certain  other
Barring Act cases for which we have recommended relief, there  was  no
dispute concerning this applicant’s entitlement to survivor  benefits.
This is not an instance where the applicant was  never  notified  that
her husband elected less than full SBP coverage.  On the contrary, the
late military member elected full SBP coverage for his previous spouse
upon his retirement from the Air Force in 1973.  When he  married  the
applicant in 1979, coverage and premiums were reinstated on the  first
anniversary  of  their  marriage.  Although  they  divorced  in  1982,
premiums continued to be deducted from the member’s retired pay  until
his death in 1983.  However, she did not submit her  first  claim  for
the annuity until 1993,  10  years  after  her  husband’s  death.  Her
request was denied on the grounds that she  was  not  married  to  the
member at the time of his death.  Then the same  District  Court  that
dissolved her marriage to the decedent in 1982  declared  the  divorce
void in 1995, thereby restoring her marital status on the date of  her
husband’s death.  Notwithstanding her on again/off again  marriage  to
the decedent and the US Court of Claims 1988  ruling  in  Pride v. US,
the applicant has not presented sufficient evidence  to  overcome  the
fact that, despite her entitlement, she did not act in a timely
manner.  Inasmuch as she has provided no compelling basis  upon  which
to recommend relief, we conclude that her appeal should be denied.

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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 9 May 98, w/atchs.
                 Exhibit B.  Letter, AFPC/DPPTR, dated 29 Jun 98.
                 Exhibit C.  Letter, AFBCMR, dated 13 Jul 98.
                 Exhibit D.  Letter, AFBCMR, dated 17 Sep 98, atch.
                 Exhibit E.  Court Decision - Pride v. US.





                                   BARBARA A. WESTGATE
                                   Panel Chair