RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01439
            INDEX CODE:  108.10

            COUNSEL:  MR. EUGENE R. FIDELL

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS:

Correction of his military records in a manner  that  would  deem  his
former spouse eligible for benefits under the 20/20/20 program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states that  for  approximately  13  years  (10  May  1990  to
10 April 2002) the Air Force  deemed  the  applicant’s  former  spouse
[Mrs. M. D---] eligible for and afforded her  medical  benefits  under
the 20/20/20  program.   This  program  enables  a  military  member’s
unremarried former spouse to obtain medical  benefits  and  commissary
and exchange benefits.  In the  spring  of  2002,  applicant’s  former
spouse was found not to have qualified under  the  Uniformed  Services
Former Spouses’ Protection Act (USFSPA)  and  the  Defense  Enrollment
Eligibility Reporting  System  (DEERS)  was  updated  terminating  her
benefits.  The applicant and his former spouse do not contest that she
falls outside of the category of former spouses who are  eligible  for
unlimited medical benefits.   However,  the  decision  to  revoke  the
medical benefits upon which she reasonably relied for  some  13  years
represents a significant hardship and constitutes and  injustice  that
can and should be corrected by the Board.

Had the Air Force, including the RAF Upper Heyford legal  office,  not
informed the applicant’s former spouse at the time of her divorce that
she was eligible for Tricare for Life under the 20/20/20 program,  she
could have obtained her own insurance.  The service has,  in  essence,
placed the applicant’s former spouse  in  a  situation  where  she  is
completely dependent upon military benefits to which she no longer has
access and is unable to obtain alternative  benefits  from  any  other
source.

In support of  his  request,  counsel  submits  a  legal  Brief,  with
additional  documents  associated  with  the  issues  cited   in   his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  applicant’s  Total  Active  Federal  Military  Service  Date   is
7 February 1967.  He was progressively promoted to the grade of master
sergeant (E-7), with an effective date and date of rank of 1  February
1982.  On 31 May 1988, the applicant was relieved from active duty  in
the grade of E-7  under  the  provisions  of  AFR  35-7  (voluntary  -
retirement for years of service established by law) and retired  on  1
June 1988.  His name was also placed on the retired Reserve list until
7 November 1996.  The applicant had completed a total of 21  Years,  3
months and 24 days of active service for retirement.

Information extracted from applicant’s appeal reveals 7 June  1969  as
the date of marriage and 23 June 1989 as the  date  of  divorce.   The
applicant and his former spouse were married for 20 years, of which 18
years, 11 months and 24 days overlapped with the applicant’s 21  years
of active service.  On 16 January 2002, the applicant’s former  spouse
completed  DD  Form   1172,   Application   for   Uniformed   Services
Identification Card DEERS Enrollment, for renewal of her dependant  ID
card.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSFR recommends  the  applicant’s  case  be  presented  to  a
Congressional representative who could draft  special  legislation  on
behalf of the former military spouse to grant her the medical benefits
she came to reply on.  DPSFR states that, based on the applicant’s  22
June 1989 divorce and the 18 years, 11 months and 24 days  of  overlap
of marriage and active duty service, the former spouse  qualified  for
benefits as a 20/20/15 category, which would have entitled her to only
one year of medical benefits.  There is no dispute that mistakes  were
made in determining the  former  spouse’s  eligibility  for  benefits;
however, authority does not exist to waive or make exceptions  to  the
eligibility criteria.  HQ USAF/DPPC also researched the situation  and
advised the family that there were no special programs  or  exceptions
to  which  the  former  spouse  would  qualify.   The  HQ   AFPC/DPSFR
evaluation is at Exhibit C.


HQ AFPC/JA recommends the application be denied.  JA  indicates  that,
in order to receive statutory benefits,  the  member  and  the  former
spouse must have been married for at least 20 years, the  member  must
have served at least 20 years of active service, and at least 20 years
of the marriage had to overlap with at least 20 years of the  member’s
active service.  This provision is known as the  20/20/20  rule.   The
applicant admits that  his  former  spouse  is  not  entitled  to  any
benefits under this law as their 20-year marriage overlapped with only
19 years of his active service.

JA states that, to  obtain  relief,  the  applicant  must  show  by  a
preponderance  of  the  evidence  that  there  exists  some  error  or
injustice warranting corrective action by the Board.  JA  agrees  that
an error occurred in this case; however, the error did  not  prejudice
the applicant.  Indeed, the Air Force’s error insured to  the  benefit
of the applicant’s former spouse  in  that  she  erroneously  received
medical benefits for nearly 13 years.  Once the error was  discovered,
it was corrected.

Even though the applicant’s  former  spouse  received  benefits  after
their divorce, and even assuming she  relied  on  those  benefits,  JA
finds no legal authority for continuing to provide the  benefits  once
the error was  discovered,  even  if  Air  Force  personnel  erred  in
interpreting or applying the rules relating to  these  benefits.   The
benefits are statutorily provided, the  parties  do  not  bargain  for
these benefits.  The statute provides the criteria for  obtaining  the
benefit.  If the criteria are not met, the applicant’s  former  spouse
is  not  entitled  to  receive  the  benefits;  the  law  provides  no
exceptions.

JA states that the applicant has shown no error in  his  records  that
can be corrected that  would  result  in  the  relief  requested.   JA
presumes the applicant intends for the Board to adjust his  retirement
date in order to meet the statutory requirements of the 20/20/20 rule.
 In addition to there being no legal authority for taking such action,
JA notes that not only would the  applicant’s  former  spouse  benefit
from such an adjustment, but the applicant himself would also  benefit
financially as he then would be entitled to back pay,  allowances  and
adjustment to his retired  pay.   The  HQ  AFPC/JA  evaluation  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

This response to the  Air  Force  evaluations  was  submitted  by  the
applicant’s daughter (Miss N, R. D---).

The applicant’s daughter indicates that  it  was  only  after  several
months of her mother informing the Air Force of what seemed  to  be  a
computer error at the time that the Air Force’s error  was  corrected.
They do  not  claim  that  personnel  informed  her  mother  that  she
qualified for continued benefits, but that she was granted  enrollment
under 20/20/20 and received those benefits.  Her mother did  not  move
from Ireland to the United Kingdom (UK) to obtain the  benefits.   Due
to an illness detected in 1989, her mother remained in the UK  instead
of going home to Ireland.  This was to ensure that the care continued,
as promised for life by the USAF.   The Air Force has control  on  who
meets the necessary criteria and should refer  to  their  regulations.
The whole point is that they did not do this in her mother’s case  and
it can be argued that a contract was made in the absence  of  adhering
to their own enforced law.  Her mother has been  caused  physical  and
emotional distress, e.g., the  way  in  which  her  medical  care  was
immediately terminated by the Air Force and her  subsequent  financial
loss in obtaining medications and legal assistance.  It  was  not  her
mother who caused this situation, but the Air Force.  Her  mother  was
informed and granted for the last 13 years the entitlement  under  the
20/20/20 program and then with four days  notice,  it  was  terminated
because the Air Force made an error.

In support of this appeal,  applicant’s  daughter  submits  copies  of
medical documents.  The complete submission, with attachments,  is  at
Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of an injustice.  After reviewing the applicant’s submission
and the evidence of record,  the  Board  majority  is  persuaded  that
relief is warranted.  The Board majority is  aware  of  the  statutory
requirements of the 20/20/20 rule.  However, the Board majority is  of
the opinion that, since the applicant’s former spouse had been relying
on the  military  medical  benefits  for  nearly  13  years,  abruptly
revoking the benefits has created a  hardship.   Had  the  error  been
detected earlier,  the  Board  majority  believes  applicant’s  former
spouse would have taken the necessary steps to ensure she had adequate
health coverage while she was still insurable.  Due to the passage  of
time and her present medical condition, applicant’s former spouse  has
gone from being insurable to uninsurable; therefore,  it  is  unlikely
that she will be able to obtain the medical benefits she needs at this
point  in  time.   The  Board  majority   considered   extending   the
applicant’s retirement date for one month; however, they did not  feel
this remedy to be in the best interest of  the  Air  Force.   In  this
regard, extending the applicant’s retirement date by one  month  would
credit him for time not served  and  would  essentially  result  in  a
windfall  of  increased  retired  pay  for  the  rest  of  his   life.
Therefore, the Board majority is of  the  opinion  that  changing  the
applicant’s  date  of  marriage  would  ensure  compliance  with   the
statutory requirements for the 20/20/20 program and would  afford  the
applicant appropriate relief.  However, it should be  understood  that
this correction would only affect the applicant’s  Air  Force  records
for the sole purpose of affording the relief to rectify the  injustice
in this case and that this correction  will  have  no  impact  on  the
applicant’s civil records.  In view of the foregoing, and in an effort
to  offset  any  possibility  of  an  injustice,  the  Board  majority
recommends  the  applicant’s  records  be  corrected  to  the   extent
indicated below.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected (as an exception to policy) to show
that he was married on 30 May 1968 and that the last 20 years  of  the
marriage overlapped with his total years of active duty service.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 October 2003, under the provisions of AFI  36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Dorothy P. Loeb, Member
              Mr. Charlie E. Williams Jr., Member

By a majority vote, Ms. Loeb and Mr. Williams recommended granting the
relief sought in this application.  Mr. Peterson  voted  to  deny  the
applicant's request but did not desire to submit  a  minority  report.
The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2003-01439.

   Exhibit A.  DD Form 149, dated 23 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSFR, dated 3 Sep 03.
   Exhibit D.  Letter, HQ AFPC/JA, dated 18 Sep 03.
   Exhibit E.  Letter, SAF/MRBR, dated 26 Sep 03.
   Exhibit F.  Letter from Applicant’s daughter, dated 10 Oct 03,
               w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR BC-2003-01439




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 (as an exception to policy)
to show that he was married on 30 May 1968 and that the last 20 years
of the marriage overlapped with his total years of active duty
service.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency