RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:
            DOCKET NUMBER:  BC-2005-02727
            INDEX CODE:137.04
            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  4 March 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her former husband’s Survivor Benefit Plan (SBP) election of  former  spouse
coverage be changed to entitle her to an SBP annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The one-year eligibility period for spouses  acquired  after  retirement  is
unjust.  Her husband paid SBP premiums until  his  death.   Prior  to  their
marriage in July 2004, they lived  as  common-law  husband  and  wife.   Her
former husband believed she would receive this benefit after  his  death  to
help with their children and mortgage.  She asks the Board to  look  at  the
attached information carefully since there are five children who  have  lost
someone very dear and still need their father’s support.

In support of her appeal, applicant submits a personal  statement,  copy  of
the divorce decree, copies of his and her birth certificates; a copy of  her
marriage certificate, a  copy  of  her  late  husband’s  death  certificate;
copies of personal  thoughts  written  by  the  former  member  and  various
correspondence relating to the maintenance of their home.   The  applicant’s
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database reflects the applicant retired  effective  1
November 1988 in the grade of master sergeant.

The remaining 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 at Exhibit B.

_________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPPRT recommends the application be denied.  DPPRT  states  the  former
member and former spouse  were  divorced  on  10 June  1996.   There  is  no
evidence that the former member notified the finance center of the  divorce,
spouse premiums continued to be deducted from his retired pay,  and  records
continued to reflect the former spouse’s name  and  date  of  birth  as  the
eligible spouse beneficiary.  DPPRT advises that there are no provisions  in
law to waive the one-year eligibility  period  for  spouses  acquired  after
retirement.  Although the applicant claims she and the  former  member  were
at common-law  following  the  former  member’s  divorce,  she  provided  no
documentation  from  the  civil  authority  attesting  to  this  fact.   The
AFPC/DPPRT evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant resubmits a copy of the former member’s divorce decree and a  copy
of  a  letter  from  Alfred  Truman  Solicitors  dated  24 September   2004.
Applicant’s letter, with attachment is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request,  USAF/JAA  reviewed  this  application  and
recommends denial.  After consulting a licensed British Solicitor  (lawyer),
JAA advises that the United Kingdom does not recognize common law  marriage.
 Additionally, the “one year rule” is established by statute and  cannot  be
waived administratively.  USAF/JAA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that  she  is  saddened  and  very  disappointed  with  the
position the Board has taken in this matter.  The impact  of  her  husband’s
death has been devastating particularly to the children.  They continued  to
pay into the SBP fund until his death,  knowing  that  if  something  should
happen to her husband,  she  and  the  children  would  be  able  to  manage
financially.  Applicant states that  justice  should  prevail  and  believes
that the right  decision  is  to  grant  the  request  in  her  favor.   The
applicant’s letter is at Exhibit G.



_________________________________________________________________



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  the  surviving
spouse should receive the Survivor Benefit Plan (SBP)  annuity.   The  Board
majority noted the former member continued to pay  the  SBP  premiums  until
his death which supports the belief that it was his intent  to  provide  his
spouse the SBP annuity.  In addition, the majority of the Board  also  notes
the applicant and the former member entered into a relationship and  appears
to have held themselves out to the community as husband and  wife  up  until
they actually married.  The Board majority is aware of  the  statutory  “one
year rule” requirement but believes that the  changing  of  the  applicant’s
date of marriage will comply with the statutory requirement and also  afford
the applicant appropriate relief.  However, it  should  be  understood  that
this correction would only affect the former member’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.  Therefore, in view of the totality of the  circumstances  of  this
case and in an effort to remove any  possibility  of  an  injustice  to  the
applicant, as an exception to policy, it is  the  Board  majority’s  opinion
that the former member’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 4 July 2003 rather than 17 July 2004.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 10 February 2006 and 4 May 2006, under the provisions of AFI  36-
2603:

                 Ms. Kathy L. Boockholdt, Panel Chair
                 Ms. Renee M. Collier, Member
                 Ms. Janet I. Hassan, Member

By a majority vote, the Board recommended approval of the application.   Ms.
Boockholdt voted to deny the applicant’s request and elected not  to  submit
a minority report.
The following documentary evidence for AFBCMR  Docket  Number  BC-2005-02727
was considered:

    Exhibit A.  DD Form 149, dated 19 Aug 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 9 Oct 05.
    Exhibit C.  Letter, SAF/MRBR, dated 14 Oct 05.
    Exhibit D.  Letter, Applicant, undated, w/atchs.
    Exhibit E.  Letter, USAF/JAA, dated 20 Mar 06.
    Exhibit F.  Letter, AFBCMR, undated.
    Exhibit G.  Letter, Applicant, dated 1 Apr 06.





                                             KATHY L. BOOCKHOLDT
                                             Panel Chair
AFBCMR BC-2005-02727




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 XXXXXXXXXXXXX, be corrected (as an exception to policy) to show
that he was married on 4 July 2003 rather than 17 July 2004; that this
correction is of limited scope so as to only affect his 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 his civil
records.






JOE G. LINEBERGER

Director

Air Force Review Boards Agency