RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-03039

                 COUNSEL:  JOHN A. HALL

            XXXXXXX    HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show his status as married,
not divorced.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The attorneys for the former spouse, Kathy W. Woods, find that a great
injustice was done to the former spouse in  1978  until  now,  stating
that this soldier was divorced and he  was  not.   The  former  spouse
submitted all paperwork to the regional office in  Jackson,  MS  since
1978 and her application was not heard until  1998,  even  though  she
applied for this over 20 years.

They come forth together as the family of the former member to ask the
Air Force to change the former member’s files to show that  they  were
still husband and wife, not divorced.  A copy of these  revised  files
will show the courts that all has been done to  recognize  the  former
spouse, which will enable her to receive all DIC benefits that are due
since 1978.

In support of her appeal,  her  counsel  submits  a  letter,  marriage
license, a letter of condolence to parents, DD Form 13,  Statement  of
Service, birth certificate, DD Form 1300,  Report  of  Casualty,  AFPC
Form  168,  Personal  Notification   Data,   former   member’s   death
certificate, DD Form 214, letter  from  Senator  Daschle,  and  a  pay
statement from DFAS.

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

STATEMENT OF FACTS:

The former member enlisted in the Regular  Air  Force  on           16
February 1973.  On 20 August 1978, the former died on active  duty  in
the grade of sergeant (E-4).

When the former member died on active duty in August 1978, his records
indicated he was divorced from the applicant.  His DD Form 93,  Record
of Emergency Data Card, dated 9 June 1978,  stated  he  was  divorced.
When the former member died, his two children lived  with  the  former
spouse.  The AF Form 58, Casualty Assistance Summary, reveals that the
former spouse is listed as the former member’s spouse and guardian  of
his children.   When  the  former  spouse  filed  her  Dependency  and
Indemnity Claim (DIC) in September 1978, she stated she was the former
member’s wife and submitted the March 1978 divorce  decree  as  proof.
Moreover, the former spouse’s behavior in 1978 in filing a  DIC  claim
was totally contrary to her present claim, i.e., she  requested  death
benefits as the children’s guardian-not as the former member’s spouse.

In 1991, the applicant filed a claim with the Veterans  Administration
(VA) as the member’s surviving spouse.  She unsuccessfully  argued  to
the VA at that time that her attorney  fraudulently  claimed  she  met
Mississippi’s  residency  requirements  for  divorce  in  that  state.
However, after several more appeals the VA agreed in 1998 to establish
DIC claim on her behalf as  he  member’s  surviving  spouse.   The  VA
determined this claim was valid only until  1991  when  the  applicant
filed the first claim.

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AIR FORCE EVALUATION:

AFPC/JA recommended denial and stated that the former member’s  spouse
did not provide any evidence in her petition to the  AFBCMR  that  her
divorce from the former member was fraudulent.  To obtain relief,  the
former spouse must show by  a  preponderance  of  the  evidence  there
exists some error or injustice warranting  corrective  action  by  the
AFBCMR.  Additionally, all claims made to  the  AFBCMR  must  be  made
within three years of the former spouse’s discovery of  the  error  or
injustice.  The former spouse’s claim fails to overcome both of  these
requirements.

Other than the assertions of having  obtained  a  fraudulent  divorce,
there is no evidence to support the former spouse’s claim that she was
married to the former member when he died.  To support such  a  claim,
they would expect Mississippi to correct this record; however, we  are
not aware that this has ever been accomplished.   Moreover,  the  VA’s
decision along these lines from 1998 is not binding  upon  the  AFBCMR
and they believe that their opinion was made in error.

The former spouse began arguing  as  of  1991  that  she  was  legally
married to the member at the time of death.  Her  failure  to  present
this issue to the AFBCMR until 2004 made it untimely and there are  no
circumstances present in this case that would justify such  a  lengthy
delay in making a claim within the statutorily imposed limit.

AFPC/JA complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  former  spouse  reviewed  the  evaluation  and  stated  that  her
attorneys have also stated that her case cannot be solved by the Board
of Appeals, because there is  no  statue  for  fraud,  whether  it  is
intentional or unintentional.  In addition, no court will believe that
[she committed fraud] knowing that her attorney had failed to get  her
a divorce by the former member’s own admission to her before his death
in 1978.  In addition, that  she  waited  until  1991,  to  apply  for
benefits of any kind even though she had no way  to  support  her  two
children.  Rather using the same documents over and  over  again,  she
was turned down, even though she repeatedly showed the Veterans Office
in Jackson, Mississippi her 1977 marriage license.

The former spouse complete submission is at Exhibit E

_________________________________________________________________

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 an error or injustice. After a thorough review of the
evidence of record  and  applicant’s  submission,  the  Board  is  not
persuaded that the deceased member’s records should be altered so that
she would receive a Dependency and Indemnity Claim  as  the  surviving
spouse.  Applicant’s contentions are duly noted;  however,  the  Board
does not find these assertions, in  and  by  themselves,  sufficiently
persuasive to override  the  rationale  provided  by  the  Air  Force.
Therefore, the Board agrees with the opinions  and  recommendation  of
the Air Force and adopts its rationale as the basis for our conclusion
that the applicant has not been the victim of an error  or  injustice.
In view of the above and absent persuasive evidence to  the  contrary,
the Board finds no compelling basis to recommend granting  the  relief
sought.

_________________________________________________________________

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-
2004-03039  in  Executive  Session  on  8  February  2005,  under  the
provisions of AFI 36-2603:

                  Ms. B. J. White-Olson, Vice Chair
                  Mrs. Barbara R Murray, Member
                  Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 Sept 04, w/atch.
   Exhibit B.  Applicant’s Master Personnel Records
   Exhibit C.  Letter, HQ AFPC/JA, dated 17 Nov 04.
   Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.
   Exhibit E.  Applicant’s response, dated 30 Nov 04.




                                   B. J. WHITE-OLSON
                                   Panel Chair