RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-02058

            COUNSEL:  NONE

            HEARING DESIRED:  NOT INDICATED


_________________________________________________________________

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, which is at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPTR  states  that  in  the  past,  DPPTR  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 their claims.  In a  21 May  1992  decision  (B-243146,  147,  and
148), the Comptroller General CG) stated that Air Force Board of  Correction
for Military Records  (AFBCMR)  action  was  not  necessary  to  create  SBP
entitlement because of the government’s failure to inform  the  spouse  that
SBP had not been elected.  The CG concluded that while the Correction  Board
can change the facts in order to  give  rise  to  a  claim,  it  cannot,  by
changing the facts, resurrect a claim on which  the  Barring  Act  has  run.
DPPTR indicated that  the  Judge  Advocate  recommended  DPPTR  continue  to
advise the  AFBCMR  in  these  matters  as  they  did  prior  to  the  cited
Comptroller General’s decisions.   If  the  Board’s  decision  is  to  grant
relief in this case, the decedent’s record should be corrected  to  show  on
31 May 1982, he elected spouse  SBP  coverage  based  on  full  retired  pay
(Exhibit C).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 7 September 2001 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 not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  After  thoroughly  reviewing  the
circumstances of this case, we are in agreement with the Air Force that  the
applicant is  entitled  to  an  annuity  under  the  Survivor  Benefit  Plan
program.  Additionally, we note that the  United  States  Court  of  Federal
Claims recently upheld a decision made by  this  Board  in  a  similar  case
(Pride v. United States, 40  Fed  Cl  730  (1998)).   Therefore,  since  the
applicant was not properly advised of her spouse’s  decision  not  to  elect
coverage, as required  by  the  applicable  statute,  there  is  no  dispute
concerning applicant's entitlement to survivor benefits under  the  criteria
set forth in Barber v. United States, 676 F.2d 651 (Ct. Cl. 1982).

4.    The recent holding in Pride v. United States, by the Court of  Federal
Claims,  validates  the  Correction  Board’s  earlier  decision  to  correct
records  in  cases  similar  to  applicant’s  appeal,  thereby  entitling  a
surviving spouse to submit a claim for  an  annuity.   The  Board's  charter
(the Act of August 2, 1946, 60 Stat. 812, 837,  as  amended,  10  U.  S.  C.
1552)  authorizes  the  Secretary,  acting  through  a  civilian  board,  to
'correct any military  record  of  that  department  when  he  considers  it
necessary to correct an error or remove an  injustice',  and  provides  that
the  department  may  pay  'a  claim  for  the  loss  of  pay,   allowances,
compensation, emoluments, or other pecuniary benefits...if, as a  result  of
correcting a record under this section, the amount is found to be  due....'"
 Therefore, in view of the Court of Federal Claims Court decision in  Pride,
we believe we continue to have the authority and  the  responsibility  in  a
case such as this, upon a finding of error  or  injustice,  to  correct  the
record as necessary to provide full and  fitting  relief.   Accordingly,  we
recommend the records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  On 31 May 1982, he elected  Survivor  Benefit  Plan  (SBP)  spouse
coverage based on full retired pay.

      b.  On 1 July 1985, his widow, Margaret L. Howell, submitted  a  claim
for a survivor benefit annuity.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 November 2001, under the provisions of AFI 36-2603:

           Mr. David C. Van Gasbeck, Panel Chair
           Ms. Patricia D. Vestal, Member
           Mr. Michael J. Novel, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 16 Jul 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPTR, dated 29 Aug 01.
   Exhibit D.  Letter, AFBCMR, dated 7 Sep 01.




                                   DAVID C. VAN GASBECK
                                   Panel Chair








AFBCMR 01-02058





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:

      a.  On 31 May 1982, he elected  Survivor  Benefit  Plan  (SBP)  spouse
coverage based on full retired pay.

      b.  On 1 July 1985, his widow, Margaret L. Howell, submitted  a  claim
for a survivor benefit annuity.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency