RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03362
		INDEX CODE:  137.00
		COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her deceased former husband’s records be corrected to show that 
he filed a timely election for former spouse coverage under the 
Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

She and her former husband thought there would be no problem in 
her receiving the SBP benefits.  The SBP premiums were 
faithfully paid every month.

She and her husband were married the first time in Mexico on    
8 Jun 82.  They were told their marriage was not legal in the 
United States, and they remarried in 1996, in Nevada.  They 
later found out that her former marriage had not been 
formalized, which resulted in them getting their marriage 
annulled in Mar 03.  They remained together until his death in 
2003.  Her husband remarried another woman so that the benefits 
he paid a good part of his life would not go to waste.

In support of her request, applicant provided her personal 
statement, a DD Form 2656-7, Verification for Survivor Annuity, 
a Form W-4P, Withholding Certificate for Pension or Annuity 
Payments, her former husband’s DD Form 214, Armed Forces of the 
United States Report of Transfer or Discharge, a letter from 
Defense Finance and Accounting Service (DFAS), a marriage 
receipt and certificate from their marriage in Mexico, a 
marriage certificate from their marriage in Nevada, a copy of 
the marriage annulment, her former husband’s death certificate, 
and a copy of her former husband’s retiree account statement.

Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Air Force stated the decedent retired effective 1 Aug 72.  
There is no evidence he had an eligible dependent during the 
initial open enrollment period following the Plan’s 21 Sep 72 
implementation, and he submitted no election at that time.  The 
member and the applicant were allegedly married in Tijuana, 
Mexico on 8 Jun 82, and he elected spouse only coverage based on 
a reduced level of retired pay during the open enrollment 
authorized by Public Law (PL) 97-35 (1 Oct 81 – 30 Sep 82).  The 
parties remarried in Reno, NV on 22 Aug 96; that marriage was 
annulled on 19 Mar 03.  Defense Enrollment Eligibility Reporting 
System (DEERS) records show the member married another woman on 
8 Apr 03.  SBP spouse premiums were continuously deducted from 
the decedent’s retired pay until his 8 Nov 03 death.  Since he 
died before the first anniversary of his 8 Apr 03 marriage, she 
is not eligible to receive SBP payments.  The Defense Finance 
and Accounting Service records erroneously reflect the 
applicant’s name and date of birth (16 Jan 33) as the eligible 
spouse beneficiary.  

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AIR FORCE EVALUATION:

HQ AFPC/DPSIAR recommends denial.  There is no evidence of Air 
Force error.  The member’s election under PL 97-35 for spouse 
SBP coverage on the applicant’s behalf was erroneously based 
upon an invalid marriage which was later annulled.  Their 8 Jun 
82 marriage was not a legal union since the applicant was 
married to another party at that time.  Therefore, there was 
never a valid marriage between the decedent and the applicant.  
Without a valid union under the statute, benefits may not be 
paid.

The complete DPSIAR evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided additional documents in support of her 
claim for the SBP annuity:  1) a copy of their 2002 Income Tax 
Return; 2) a letter from her doctor stating that she was with 
her husband at the time of his death; 3) a copy of her former 
husband’s Will; 4) a homeowners policy declaration (naming the 
insured as husband and wife); 5) a life insurance policy 
(showing her as the wife and beneficiary); and 6) a homeowners 
policy (showing them as husband and wife).

The money she was supposed to get from the life insurance policy 
was not paid due to a mistake on the form.  She and her former 
husband felt there would be no problem with her receiving the 
SBP annuity since she is the only one who can receive it.  At 
the time the SBP was taken out they thought their marriage was 
legal.

The applicant’s complete response, with attachments, is at 
Exhibit D.

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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; however, noting that she was never legally married to 
the decedent, she cannot be considered a former spouse, and is 
therefore, not eligible for SBP annuity payments under the 
applicable statute.  Accordingly, we find no plausible basis 
upon which to recommend granting the relief requested.  The Air 
Force office of primary responsibility has recommended that we 
consider voiding the decedent's 23 Sep 82 election for SBP 
coverage for the applicant, suggesting that the "erroneous 
deductions of SBP premiums for spouse coverage be refunded to 
the applicant."  We carefully considered this recommendation; 
however, we came to the conclusion that taking such action would 
not be appropriate.  In this regard, this recommended correction 
appears to leave too many unanswered questions; especially, who 
would actually be entitled to the refund of the premiums since 
it appears the applicant and the decedent were never legally 
married.  We believe the possibility exists that rendering such 
a determination could lead to a claims dispute.  Therefore, we 
believe it would not be prudent for the AFBCMR to exercise its 
discretionary authority in this matter and such decision may 
need to be addressed in a court of law.  In view of the 
foregoing, we find no compelling basis to recommend granting the 
relief sought or recommended in this application.  

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

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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.

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The following members of the Board considered Docket Number    
BC-2007-03362 in Executive Session on 14 Feb 08, under the 
provisions of AFI 36-2603:


XXXXXXXXX, Panel Chair
XXXXXXXXX, Member 
XXXXXXXXX, Member

The following documentary evidence pertaining to Docket Number 
BC-2007-03362 was considered:

     Exhibit A.  DD Form 149, dated 9 Oct 07, w/atchs.
     Exhibit B.  Letter, AFPC/DPSIAR, dated 19 Nov 07.
     Exhibit C.  Letter, SAF/MRBR, dated 21 Dec 07.
     Exhibit D.  Letter, Applicant, dated 11 Jan 08, w/atchs.




								XXXXXXXXXXXXX
								Panel Chair