RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01195
                                             INDEX CODE:  136.01
      XXXXXX                                 COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  18 October 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

Four  days  be  waived,  and  her   DD   Form   2765,   Uniformed   Services
Identification and Privilege  (USIP  card),  with  benefits  and  privileges
(medical, commissary, exchange, and Morale, Welfare, and Recreation  (MWR)),
be reinstated.

________________________________________________________________

APPLICANT CONTENDS THAT:

She and her former spouse were married on 5 November 1966.  When  they  were
divorced on 28 April 2004, they were both thinking those first 21  years  of
their 37 years of marriage had been during his  active  duty  with  the  Air
Force; however, her former spouse’s Date of Separation (DOS) was  1 November
1986, thus resulting in 19 years and 361 days  of  marriage  overlap  during
his active duty with the Air Force.

The lack of four days has meant a significant difference in her  quality  of
life.  She no longer has access to military  bases  and  the  many  benefits
that ensue.  Even more significant, she no  longer  has  access  to  TRICARE
Medical help.  Although she is a healthy person, she is also  now  62  years
old, and being denied TRICARE has immense financial ramifications for her.

Her waiting, praying, holding down a home singly  [sic]  while  her  husband
served in Vietnam, and many spousal sacrifices to a military  career  should
be recognized.  She always  tried  to  give  back  more  than  she  received
through base and community involvements.

In addition to being an Air Force wife, she served six weeks active duty  in
the Navy Reserve  at  Officer  Candidate  School  in  the  summer  of  1965.
Additionally, after her late  husband’s  formal  retirement  ceremony,  they
were allowed to remain living in their base quarters for a couple  of  weeks
– a fact that contributed to their confusion 18 years later as  to  when  he
actually separated from the Air Force.

While there is probably no precedent for a request like this,  she  believes
wrongs can be righted.   Surely,  a  spouse’s  19  years  and  361  days  of
faithful commitment to the Air Force and an active duty member of  that  Air
Force can be recognized with equivalence.

In support of her appeal, she has furnished copies of a personal  statement,
dated 9 April 2007, and her former spouse’s Certificate of Death,  dated  17
December 2006.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant and her former spouse  were  married  on  5  November  1966.   Her
former spouse voluntarily retired  on  1  November  1986  with  21 years,  5
months, and 13 days of net active service.

At the time of his retirement on 1  November  1986,  the  overlap  of  their
marriage and his creditable service in determining eligibility  for  retired
pay was 19 years, 11 months, and 26 days, as the overlap  period  begins  on
the date of marriage, 5 November 1966, and  stops  on  the  former  spouse’s
last day of active duty, 31 October 1986.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOOR recommends denial as no error or injustice has occurred.

Applicant met the first two requirements of the  Uniformed  Services  Former
Spouses’ Protection Act.  She had been married  to  her  former  spouse  for
more than 20 years, and he had completed more  than  20  years  of  service.
However, she did not meet the third requirement of completing  at  least  20
years of overlap  of  marriage  and  the  sponsor’s  creditable  service  in
determining eligibility to retired pay.  Because  the  overlap  of  marriage
was less than 20 years, but more than 15 years, applicant had qualified  for
medical care benefits as a former spouse for  one  year  from  the  date  of
their divorce.  She does not have the 20-year overlap  required  to  qualify
for the four year renewable military medical benefits.

Applicant’s former spouse’s military service retirement date would  have  to
be adjusted to 5 November 1986 to  provide  the  qualifying  overlap  of  20
years.  No authority exists to change  his  retirement  date  for  the  sole
purpose of allowing his  spouse  eligibility  to  former  spouse  (20/20/20)
benefits and privileges.  10 USC, section  1072,  provides  the  eligibility
criteria and does not  provide  for  waivers  or  exceptions  to  qualifying
criteria.

Her former spouse retired in November 1986,  divorced  in  April  2004,  and
passed away on 17 December 2006.  He had  two-and-one  half  years  that  he
could have attempted to change his record to accommodate his former  spouse,
and did not do so.

There are parameters set with any eligibility program and they were not  met
in this situation.  Applicant did not complete a  full  20-year  overlap  of
marriage and the sponsor’s service as required, and to adjust the  sponsor’s
retirement date would not be consistent with  the  intent  of  the  law  and
would create an unwarranted precedent.

The AFPC/DPSOOR evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

There are many in the communities of Laredo, San Antonio,  Pensacola,  Enid,
OK, and Homestead where they were based who are willing to  write  favorable
affidavits concerning her  contributions  to  military  and  community  life
involvement, and she would be glad to supply  this  further  information  if
needed.

She rebutted the advisory statement that her former husband did not  attempt
to change his record, stating that if it is possible to change a  retirement
date, this information is not readily available in the  military  community,
and they were unaware of and never contemplated such a far  reaching  ideal.
They did not realize for almost a year that there were 4 days missing  in  a
full 20-year overlap of his full Air Force career.  When they  became  aware
of this missing 4 days and the implications for her, she  immediately  began
contacting her two U.S. Senators as they thought this was her highest  point
of resolution.  Only in August 2006 did  they  learn  of  a  possibility  of
correcting his Survivor Benefit Plan (SBP), and he promptly took  action  to
do so.  When he unexpectedly died in December 2006,  she  connected  with  a
Navy Chief at Carswell NAS, TX,  who  explained  the  AFBCMR  process.   She
filed an application with the AFBCMR to correct his SBP which  was  approved
(AFBCMR BC-2007-00302).

If the Board cannot waive the missing 4 days, she appeals for  consideration
of returning partial military privileges – medical even as a  supplement  to
Medicare after  she  reaches  age  65  and/or  being  allowed  to  use  base
facilities such as the  commissary,  exchanges,  movie  theater,  and  VOQs.
Such privileges meant so much to them throughout their marriage of 37  years
as they traveled, especially visiting friends and family at old bases.   She
closed by pointing out statements made in her  March  [sic]  letter  to  the
Board.

Applicant’s complete response 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 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 is persuaded  that  relief  is  warranted.
We are aware of the statutory requirements of the 20/20/20  rule.   However,
we are of the opinion that since the applicant’s former  spouse  retired  in
November 1986 and they were not divorced until April 2004,  almost  18 years
later, they did not realize that there were 4 days missing  in  a  full  20-
year overlap of his full Air Force career.   Had  the  error  been  detected
earlier, the Board believes the applicant’s former spouse would  have  taken
the necessary steps to change his military record,  and  evidence  has  been
presented that he was attempting to do  so  when  he  unexpectedly  died  in
December 2006.  We considered extending his retirement  date  to  1 December
1986, but did not feel this remedy to be in the best interests  of  the  Air
Force in that this would credit him for time not served and could result  in
a monetary windfall.  Therefore, we are of the  opinion  that  changing  his
date of marriage would ensure compliance  with  the  statutory  requirements
for the 20/20/20 program and would afford the applicant appropriate  relief.
 However, it should be understood that this  correction  would  only  affect
his military records for the sole purpose of  affording  relief  to  rectify
the injustice in this case, and that this correction will have no impact  on
his civil records.  In view of the foregoing, and in  an  effort  to  offset
any possibility of  an  injustice,  the  Board  recommends  the  applicant’s
former spouse’s military  records  be  corrected  to  the  extent  indicated
below.

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 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 1  November  1966;  that  the  last  20  years  of  the  marriage
overlapped  with  his  total  years  of  active  duty  service;  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.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-01195
in Executive Session on 24 July 2007, under the provisions of AFI 36-2603:

                       Ms. Patricia J. Zarodkiewicz, Vice Chair
                       Mr. Jeffery R. Shelton, Member
                       Ms. Dee R. Reardon, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOOR, dated 24 May 07.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Jun 07.
    Exhibit E.  Letter, Applicant, dated 20 Jun 07




                                   DEE R. REARDON
                                   Acting Panel Chair



AFBCMR BC-2007-01195




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 XXXXXXX be corrected (as an exception to policy) to show that
he was married on 1 November 1966; that the last 20 years of the marriage
overlapped with his total years of active duty service; 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