RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02127
            INDEX CODE:  137.04

            COUNSEL:  NONE

            HEARING DESIRED: YES



_________________________________________________________________

APPLICANT REQUESTS THAT:

The deceased  member’s  records  be  corrected  to  show  her  as  the
beneficiary of his Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was the former service member’s domestic partner as  evidenced  by
an affidavit of domestic partnership presented to  her  employer  that
was executed between  the  deceased  former  service  member  and  the
applicant in Los Angeles County, California on 11 June 2002.  She  was
not informed that she was not eligible for SBP  because  she  was  not
married  to  the  deceased  for  a  year  and  a  day.  However,   she
subsequently learned a domestic partnership makes her SBP eligible.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement and copies of legal power of attorney, a death  certificate,
letters of support and several copies  of  supporting  documents  from
various locations.

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased former service member was married to his former spouse on
5 August 1972.  He elected spouse and child SBP coverage based on full
retired pay prior to his 1  December  1978  retirement.   The  Defense
Finance and Accounting Service  (DFAS)  records  reflect  the  parties
divorced on 27 May 1988, but his spouse’s portion of the SBP  was  not
suspended until September 1989, retroactive to the date of divorce and
overpaid premiums were refunded to the member.  Pay  records  indicate
the member remarried a person  on  12  October  1991  and  spouse  SBP
coverage and associated premiums were reinstated on the anniversary of
the marriage.  DFAS has  been  unable  to  determine  how  the  second
marriage ended.  On 16 April 2002, DFAS received a  request  from  the
member requesting that the spouse portion  of  the  SBP  be  suspended
based on  his  1988  divorce.   DFAS  complied  with  the  request  by
suspending coverage and refunding  the  member’s  over  paid  premiums
subject to the six-year statute of limitations on such.  His 9  August
2002 death certificate reflects he was married upon his death and  the
applicant was his wife.  Further, the Defense  Enrollment  Eligibility
Reporting System (DEERS) reflects he and the applicant were married on
11 July 2002.  The applicant’s case contains a copy of an 11 June 2002
United  Airlines  Employee   and   Retiree   Affidavit   of   Domestic
Partnership,  identifying  the  applicant  as  the  member’s  domestic
partner beginning May 1998.  All documents indicate the  deceased  and
the applicant lived in California prior to his death on 9 August 2002.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states there  is  no  evidence  that  a
common law marriage was  established  before  the  applicant  and  the
deceased lived together in California.  Although she is referred to as
the deceased’s wife on the death certificate, she neither alleges  nor
provides proof of a marriage.  Although she is enrolled in  DEERS,  JA
states there is no record on file to indicate  there  was  a  marriage
certificate or common law decision made.  According to DEERS  records,
the applicant and the deceased were married on 11 July  2002  and  her
eligibility for DEERS is now in question as they, were not,  in  fact,
married.  A marriage contract  in  California  requires  consent,  the
issuance of a license and solemnization.  The doctrine of  common  law
marriage was abolished in California by statute.  California  however,
recognizes common-law marriages validly created in states which  allow
such  marriages.   Based  on  the  available  documentation,  a  valid
marriage was not contracted in California or any other state.

AFPC/JA’s complete evaluation is at Exhibit B.

AFPC/DPPRT, in a previous advisory, dated 21 August 2006, stated  that
should the Board of Corrections (BCMR)  determine  the  applicant  had
sufficiently established her claim as the decedent’s  common-law  wife
prior to 9 August  2001,  according  to  the  laws  of  the  State  of
California, his record should be changed to show he and the  applicant
were legally married at  that  time.   While  the  applicant  provided
documentation supporting domestic partnership, HQ AFPC/JA reviewed the
evidence and determined that no common-law marriage existed.  Further,
SBP  laws  do  not  recognize  domestic  partnership  as  an  eligible
category.  Therefore, based on the JA advisory, DPPRT  recommends  the
applicant’s claim be denied.

AFPC/DPPRT’s complete evaluation is at Exhibit C.

_________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
4 May 2007 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;
however, we agree with the opinion and recommendation of the Air Force
offices 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.  SBP laws do not recognize domestic partnership
as  an  eligibility  category.   Further,  based  on   the   available
documentation, a valid marriage was not contracted  in  California  or
any other state.   Therefore,  in  the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought 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(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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-
2006-02127 in Executive Session on 7 June 2007, under  the  provisions
of AFI 36-2603:




      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Alan A. Blomgren, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Jul 06, w/atchs.
    Exhibit B.  Letter, AFPC/JA, dated 9 Apr 07.
    Exhibit C.  Letter, AFPC/DPPRT, dated  24 Apr 07.
    Exhibit D.  Letter, SAF/MRBR, dated 4 May 07.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair