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AF | BCMR | CY2001 | 0002596A
Original file (0002596A.doc) Auto-classification: Denied

                                  ADDENDUM
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02596
            INDEX CODE:137.00
      APPLICANT (Deceased)   COUNSEL:  NONE

      SSN   HEARING DESIRED:


Applicant requests that her former late husband’s record be  corrected
to allow her an entitlement to a Survivor Benefit Plan (SBP)  annuity.
Applicant's submission is at Exhibit A.

The appropriate Air Force office  evaluated  applicant's  request  and
provided an advisory opinion to the Board recommending the application
be granted (Exhibit B).  The advisory opinion  was  forwarded  to  the
applicant for review and  response  (Exhibit  C).   In  addition,  the
AFBCMR staff forwarded  a  legal  opinion  from  HQ  USAF/JAG  to  the
applicant which indicated that the AFBCMR cannot  rule  on  a  dispute
between two claimants to a benefit that only one of them can  receive.
The legal opinion further indicated that it is not appropriate for the
Board to adjudicate such a dispute since that task is properly left to
the courts (Exhibit D).   As  of  this  date,  no  response  has  been
received from the applicant by this office.

After careful consideration of applicant's request and  the  available
evidence  of  record,  we  find  insufficient  evidence  of  error  or
injustice to warrant corrective action.  In this  respect,  while  the
facts and opinions stated in the advisory opinion from the SBP  office
of primary responsibility (OPR) appear to be based on the evidence  of
record and recommend the application be approved,  we  note  that  the
legal opinion from HQ USAF/JAG indicates that it  is  not  appropriate
for the AFBCMR to adjudicate such a matter.  Absent a  court  decision
reflecting that the  applicant  is  the  proper  beneficiary,  we  are
persuaded that the Board  is  precluded  from  granting  this  request
because such a correction would take away the benefit from the service
member’s widow.  Therefore, until such time that a court of  competent
jurisdiction determines that the applicant  is  entitled  to  the  SBP
annuity, we find insufficient basis upon which to disturb the existing
record.

Accordingly, applicant's request is denied.

The Board staff is directed to  inform  applicant  of  this  decision.
Applicant should also be informed that this decision is final and will
only be reconsidered upon the presentation of  new  relevant  evidence
which was not available at the time the application was filed.

Members of the Board Mr. David C. VanGasbeck, Ms. Patricia D.  Vestal,
and  Mr. Joseph A. Roj  considered  this   application  on  6  and  13
February  2001,  in  accordance  with  the  provisions  of  Air  Force
Instruction 36-2603 and the governing statute, 10, U.S.C. 1552.




                       DAVID C. VANGASBECK
                       Panel Chair

Exhibits:

A.  Applicant's DD Form 149
B.  Advisory Opinion
C.  SAF/MIBR Ltr Forwarding Advisory Opinion
D.  AFBCMR Ltr Forwarding Legal Opinion

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