RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01024
            INDEX CODE:  137.01

            COUNSEL:  CHRISTOPHER M. JACKSON

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken  that  would  entitle  her  to  a  Survivor
Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She would have pursued this issue sooner  had  she  not  been  led  to
believe that her claim for survivor benefits would be tolled until her
own retirement.  Upon her retirement from active duty in the US  Army,
she found out this was not the case and that she had been led  astray.
Her now deceased husband retired in 1962 and had paid SBP premiums for
over 30 years prior to his death.  His first wife predeceased him  and
they married in February 1995.  They were married for  345  days  when
the decedent passed away.  She contends that under the legal principal
of equity and good conscience, she  should  be  awarded  the  survivor
benefits her deceased husband paid for and clearly meant  for  her  to
have after he sacrificed for so many years to provide it.  She notes a
precedent for the exercise of equity and good conscience as  found  in
38 United States Code (U.S.C.) 5302.

She further contends that the requirement that a member live  for  one
year after marriage, whether with the first or second spouse, or  have
a child by either the  first  or  second  spouse,  is  so  lacking  in
rational justification as to deny the surviving spouse due process  of
law in violation of the Fifth Amendment.  The foregoing is  especially
true when the requirements of 10 U.S.C. 1447(7)(A)(B), are compared to
the provisions of 10 U.S.C. 1477 which concerns death benefits.  In 10
U.S.C. 1447, there is no requirement  that  a  “surviving  spouse”  be
married for one year.  The only difference being the choice  of  words
“surviving spouse” rather than “widow.”

She states that even though they were married 20 days shy  of  a  full
year, they lived together  for  a  couple  of  years  prior  to  their
marriage.  She states her husband’s last remaining years  were  marred
not only by physical ailment but by the discomfort and trauma  of  his
son being sentenced to prison.  She  has  sought  redress  within  the
Veteran’s Administration (VA) while working full-time, caring for  her
aging mother and her sister,  as  well  as  visiting  her  stepson  in
prison, but has found no relief.  She has shared  her  late  husband’s
final years and believes he intended for  her  to  receive  those  SBP
benefits.  She states her husband paid into the program for years with
the intention of looking after those he loved and cared for.

In support of her appeal, the  applicant  has  provided  copies  of  a
letter from her counsel. a personal statement,  a  letter  of  support
from a former  commander,  her  retirement  order,  a  certificate  of
marriage, her Army DD Form 214, Armed  Forces  of  the  United  States
Report of Transfer or Discharge,  her  deceased  husband’s  retirement
order, his death certificate,  their  marriage  license,  as  well  as
several pertinent documents from  the  Defense  Finance  &  Accounting
Service (DFAS).

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member was retired for disability effective  21 September
1967.  He was married at the time and  elected  spouse  only  coverage
based on  full,  retired  pay  during  the  SBP’s  initial  enrollment
opportunity from 21 September 1972 through 20 March 1974.   His  first
spouse died on 30 November  1992  and  SBP  costs  and  coverage  were
suspended at that time.  The decedent and the applicant married on  18
February 1995 and he died on 20 January 1996, twenty days  before  the
end of their first year of marriage.

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states the applicant  claims  she
and the decedent lived together for a “couple of years”  before  their
marriage; however, she provides no evidence they were in a  common-law
marriage or that the State in which they lived at the time  recognized
such unions.  Regarding Title 10 U.S.C. Section 1477’s not requiring a
surviving spouse to be married to the member for one year in order  to
be entitled to death benefits, DPPTR argues that Section 1477 pertains
to death gratuity paid to the surviving spouse of a member who  either
died on active duty or within 120 days of  retirement.   Section  1477
does not apply to SBP.  Section 1447 (7A) however, defines a widow  as
the surviving wife of a person “who was married to him  for  at  least
one year immediately before his death” and there is no provision  that
authorizes a waiver of that criteria, absent  the  birth  of  a  child
before the first anniversary of the marriage.

DPPTR’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant’s
counsel on 30 April 2004 for review and comment within 30 days.  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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the merits of the case  and
sympathize with her situation; however, we agree with the opinion  and
recommendation of the Air Force office of primary  responsibility  and
adopt their rationale  as  the  basis  for  our  conclusion  that  the
applicant has not been the victim of an error  or  injustice.   Absent
the birth of a child between the two, evidence of  a  state-recognized
common-law marriage, or evidence they were  married  longer  than  one
year, there is no legal basis with which to grant relief.   Therefore,
in the absence of evidence to the  contrary,  we  find  no  compelling
basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket Number BC-
2004-01024 in Executive Session on 20 July 2004, under the  provisions
of AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Patricia D. Vestal, Member
      Mr. Joseph A. Roj, Member







The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, , dated.
    Exhibit D.  Letter, SAF/MRBR, dated 30 April 2004.



                                   ROSCOE HINTON JR
                                   Panel Chair