RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-03290

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her husband's records be corrected to show she is  entitled  to  a  Survivor
Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust  and
the evidence submitted in support of the appeal is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR,  reviewed  the  application  and  recommends  denial.   DPPTR
states that there is no provision in the law that requires  the  new  spouse
to concur in the member's decision to  terminate  previously  suspended  SBP
coverage upon their marriage.  The member provided DEFAS-Cleveland Center  a
valid termination request  and  the  applicant's  claim  that  she  was  not
notified of the member's decision would not have  altered  the  validity  of
the member's decision to permanently terminate his suspended  SBP  coverage.
Therefore, DPPTR recommended the applicant's request be denied (Exhibit C).


_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 16 June 2000 for review and response.  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 timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  After reviewing the  evidence  of
record, the majority of the Board is not persuaded that  the  applicant  has
been the victim of an error or injustice.  Since there is  no  provision  in
the law requiring the new spouse to  concur  in  the  member's  decision  to
terminate  previously  suspended  SBP  coverage  upon  their  marriage,  the
applicant's claim that she was not notified of her spouse's  decision  would
not have altered the validity of the members decision.  The majority of  the
Board agrees with the opinion and recommendation of the Air Force office  of
primary responsibility and adopts their rationale as  the  basis  for  their
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  Therefore, in the absence  of  evidence  to  the  contrary,  the
majority of the Board finds no compelling basis to  recommend  granting  the
relief sought in this application.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence or  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 29 August 2000, under the provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. George Franklin, Member
      Ms. Margaret A. Zook, Member

By a majority vote, the Board voted to deny the  relief  requested.
Mr. Peterson voted to grant the relief and has submitted a minority
report which is attached at Exhibit E.

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Dec 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPTR, dated 6 Jun 00.
    Exhibit D.  Letter, SAF/MIBR, dated 16 Jun 00.
    Exhibit E.  Minority Report, dated 18 Oct 00.




                                   RICHARD A. PETERSON
                                   Panel Chair


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                   CORRECTION OF MILITARY RECORDS

SUBJECT:  Minority Report - APPLICANT

      The majority of the panel recommends denial of the applicant's
request that the records of her late husband be corrected to entitle her to
a Survivor Benefit Plan (SBP) annuity.  I disagree with the Board majority
and believe that the evidence presented is sufficient to show the applicant
was a victim of an injustice, and in the interest of fairness, favorable
consideration of her request is appropriate.

      While the Board majority is of the opinion the law is clear in that
there is no provision in it requiring the new spouse to concur in a
member's decision to terminate previously suspended SBP coverage upon their
marriage, Title 10 United States Code 1448(a)(6),and Secretary of Defense
Implementation Guidance PL 99_145, 8 Nov 85 does require the new spouse be
notified that the member has terminated SBP coverage.  No evidence has been
presented that would suggest the applicant was notified of her husbands
decision to terminate SBP coverage.  The key is notification

      To further compound the issue, upon the death of the member, the
applicant began receiving SBP annuity payments.  Shortly thereafter, DFAS
notified her that she was not entitled to the annuity payments and needed
to repay $1,489.03.  However, after payment in full, the applicant
continued to receive benefits.  Only after receiving over $8,000 in
additional payments, was the applicant again notified that she was not
eligible for the SBP annuity and again she also needed to repay the monies
she received.

      In summary, I believe doubt should be resolved in the applicant's
favor and the records should be corrected to show that on 3 Jul 95 the
member elected spousal coverage under the Survivor Benefit Plan based on
his full retired pay.  To do otherwise, in my opinion would be violating
our charter as the applicant, under the circumstances stated above, has
clearly established that she has been the victim of an error or an
injustice.


                                             RICHARD A. PETERSON
                                             Panel Chair



AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
AFBCMR 99-03290




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 11 November 1995 the
member elected to reinstate spouse only coverage based on full retired
pay.







  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency