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AF | BCMR | CY2008 | BC-2007-02698
Original file (BC-2007-02698.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02698
            INDEX CODE:137.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased ex-husband’s records be corrected to reflect  he  elected
coverage for her under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was married to the service member for over 10 years and should  be
entitled to benefits.

In support of her application, she provided  a  copy  of  the  service
member’s DD Form 214, Certificate of Release or Discharge from  Active
Duty, a personal statement, a copy of her marriage certificate and the
former service member’s death certificate.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the former service member were married on 7 Jan  73.
Prior to his 1 Aug 84 retirement, he elected child only coverage under
the SBP based on full retired pay.  He and the applicant were divorced
on 3 Nov 86.  The divorce decree was silent on SBP.  He died on 19 Nov
88.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIAR recommends the requested relief be denied.  DPSIAR  states
the applicant was married to the former service  member  for  over  10
years; however, duration is not  legal  grounds  for  authorizing  SBP
eligibility.  The service member agreed to pay  a  percentage  of  his
retired pay to the applicant, the  division  of  retired  pay  is  not
considered and should not be interpreted as  pertaining  to  the  SBP.
SBP is similar to commercial life insurance in that an individual must
elect to participate and pay the required  premiums  in  order  to  be
covered.

The complete AFPC/DPSIAR evaluation at Exhibit B.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  Air  Force  evaluation  and  states  she
believes she is being discriminated against because she was not born a
US citizen.  She believes  she  is  entitled  to  benefits  based  the
Soldiers and Sailors Civil Relief Act of 1940 (Exhibit D).

_________________________________________________________________

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 filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of an error or an injustice.   We  took  notice  of  the
applicant’s complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and the recommendation of  the  Air
Force office of primary responsibility and adopt its rationale as  the
basis for our conclusion that the applicant has not been the victim of
an error or an injustice.  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   issues   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-
2007-02698 in Executive Session on 14 Feb 08, under the provisions  of
AFI 36-2603:

                       Ms. Marcia Jane Bachman, Acting Panel Chair
                       Mr. Alan A. Blomgren, Member
                       Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 Aug 07, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPSIAR, dated 3 Oct 07.
      Exhibit C. Letter, SAF/MRBR, dated 26 Oct 07.
      Exhibit D. Applicant’s Response, dated 18 Nov 07.




                             MARCIA JANE BACHMAN
                             Acting Panel Chair

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