RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03326
            INDEX CODE:  137.01

            COUNSEL:  GAINES W. SMITH

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  26 APR 08

_________________________________________________________________

APPLICANT REQUESTS THAT:

Applicant was the spouse of the  deceased  former  servicemember,  who
requests her late husband’s records be corrected to entitle her  to  a
Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was unaware of the rules pertaining  to  the  SBP.   She  and  the
former servicemember lived together since 1989 as husband and wife; he
elected SBP.  When they married in 2003, he died  eight  months  later
and the SBP election was denied.

In  support  of  her  appeal,  the  applicant  provided  documentation
pertaining to an SBP annuity, marriage and death certificates, a court
order, and supportive statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember was married to another individual on 2 Feb 43
and he elected spouse coverage under the Retired  Serviceman's  Family
Protection Plan (RSFPP), prior to his 1 Feb 66 retirement.  The former
servicemember elected spouse only SBP  coverage  based  on  a  reduced
level of retired pay during the initial enrollment  period  authorized
by Public Law (PL) 92-425, and concurrently requested that  his  RSFPP
be terminated.  The Defense Enrollment  Eligibility  Reporting  System
(DEERS) reflects his spouse died on 29 Aug 85.   The  Defense  Finance
and Accounting  Service  (DFAS)  records  reflect  SBP  premiums  were
suspended  retroactive  to  the  date  of  her  death.    The   former
servicemember and the applicant married on 28 Jun 03 and he  completed
an SBP remarriage election request; however, he died  on  16  Feb  04,
prior to the first anniversary of their marriage.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT recommends denial noting that members, who  have  suspended
spouse coverage and who remarry after they retire, must be married for
one full year, or the spouse must be a parent of issue of a child born
of that marriage (if married less  than  one  year)  in  order  to  be
eligible for the  SBP.   These  criteria  are  waived  if  the  member
remarries the spouse  he  or  she  was  married  to  on  the  date  of
retirement; in that specific case, the spouse becomes eligible for the
SBP immediately following the marriage.

AFPC/DPPRT indicated that notwithstanding the State of South  Carolina
Probate Court Order, dated 28 Sep 06, where  the  applicant  sought  a
determination of her claim as an  omitted  spouse,  and  the  numerous
letters of support from allegedly knowledgeable references, there  was
no evidence that South Carolina recognizes the applicant's claim  that
a common law marriage existed at least one year prior to the  member's
death.  While it is unfortunate the member died  prior  to  the  first
anniversary of their marriage, there are no provisions in law to waive
the one-year eligibility period for spouses acquired after retirement.

A complete copy of the AFPC/DPPRT evaluation is at Exhibit B.

AFPC/JA recommends denial indicating the issue in this case is whether
the applicant was married to the former  servicemember  at  least  one
year before his death.  Based on the  documentation  provided  by  the
applicant, they could not conclude a common law marriage existed.

A complete copy of the AFPC/JA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  22
Dec 06 for review and response within 30 days (Exhibit D).  By letter,
dated  18  Jan  07,  the  applicant’s  counsel  requested   that   the
applicant’s case be temporarily withdrawn  (Exhibit  E).   By  letter,
dated 1 Feb 07, counsel was notified the  applicant’s  case  had  been
temporarily withdrawn and would remain closed until such  time  as  he
indicated they were prepared to proceed (Exhibit F).

By letter, dated 25 Jul 07, counsel  requested  that  the  applicant’s
case be reopened, and provided additional documentary evidence  (court
order) for the Board’s consideration (Exhibit G).

Applicant provided an additional response, dated 28 Aug 07, indicating
that she and her attorney went  to  court  to  prove  her  common  law
marriage to the former servicemember as requested.

Applicant’s complete response is at Exhibit H.

_________________________________________________________________

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.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.   After  a  thorough  review  of  the
evidence of  record,  we  are  persuaded  that  corrective  action  is
warranted in this case.  The applicant  has  provided  a  court  order
indicating that a common law  marriage  between  her  and  the  former
servicemember was valid and existing during the period Sep  89  to  28
Jun  03.   In  view  of  the  foregoing,  we  recommend   the   former
servicemember’s records be corrected to extent set forth below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the FORMER SERVICEMEMBER, be corrected to show that:

      a.  He and XXXXXXXX were married on 30 September 1989; 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.

      b.  On 1 October 1989, he elected spouse only coverage under the
Survivor Benefit Plan (SBP) based on a reduced level of  retired  pay,
naming XXXXXXXXX as spouse beneficiary.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 26 Sep 07, under the provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Renee M. Collier, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence pertaining to AFBCMR Docket Number  BC-
2006-03326 was considered:

     Exhibit A.  DD Form 149, dated 23 Oct 06, w/atchs.
     Exhibit B.  Letter, AFPC/DPPRT, dated 9 Nov 06.
     Exhibit C.  Letter, AFPC/JA, dated 18 Dec 06.
     Exhibit D.  Letter, SAF/MRBR, dated 22 Dec 06.
     Exhibit E.  Letter, counsel, dated 18 Jan 07.
     Exhibit F.  Letter, AFBCMR, dated 1 Feb 07.
     Exhibit G.  Letter, counsel, dated 25 Jul 07, w/atch.
     Exhibit H.  Letter, applicant, dated 28 Aug 07.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair




AFBCMR BC-2006-03326




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 , be corrected to show that:

            a.  He and  were married on 30 September 1989; 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.

            b.  On 1 October 1989, he elected spouse only coverage
under the Survivor Benefit Plan (SBP) based on a reduced level of
retired pay, naming  as spouse beneficiary.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency