RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01439
		INDEX CODE:  108.10

		COUNSEL:  XXXXX

		HEARING DESIRED:  NO

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APPLICANT REQUESTS:

Correction of his military records in a manner that would deem his former spouse eligible for benefits under the 20/20/20 program.

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APPLICANT CONTENDS THAT:

Counsel states that for approximately 13 years (10 May 1990 to 10 April 2002) the Air Force deemed the applicant’s former spouse [Mrs. XXXXX] eligible for and afforded her medical benefits under the 20/20/20 program.  This program enables a military member’s unremarried former spouse to obtain medical benefits and commissary and exchange benefits.  In the spring of 2002, applicant’s former spouse was found not to have qualified under the Uniformed Services Former Spouses’ Protection Act (USFSPA) and the Defense Enrollment Eligibility Reporting System (DEERS) was updated terminating her benefits.  The applicant and his former spouse do not contest that she falls outside of the category of former spouses who are eligible for unlimited medical benefits.  However, the decision to revoke the medical benefits upon which she reasonably relied for some 13 years represents a significant hardship and constitutes and injustice that can and should be corrected by the Board.

Had the Air Force, including the RAF Upper Heyford legal office, not informed the applicant’s former spouse at the time of her divorce that she was eligible for Tricare for Life under the 20/20/20 program, she could have obtained her own insurance.  The service has, in essence, placed the applicant’s former spouse in a situation where she is completely dependent upon military benefits to which she no longer has access and is unable to obtain alternative benefits from any other source.

In support of his request, counsel submits a legal Brief, with additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date is 7 February 1967.  He was progressively promoted to the grade of master sergeant (E-7), with an effective date and date of rank of 1 February 1982.  On 31 May 1988, the applicant was relieved from active duty in the grade of E-7 under the provisions of AFR 35-7 (voluntary - retirement for years of service established by law) and retired on 1 June 1988.  His name was also placed on the retired Reserve list until 7 November 1996.  The applicant had completed a total of 21 Years, 3 months and 24 days of active service for retirement.

Information extracted from applicant’s appeal reveals 7 June 1969 as the date of marriage and 23 June 1989 as the date of divorce.  The applicant and his former spouse were married for 20 years, of which 18 years, 11 months and 24 days overlapped with the applicant’s 21 years of active service.  On 16 January 2002, the applicant’s former spouse completed DD Form 1172, Application for Uniformed Services Identification Card DEERS Enrollment, for renewal of her dependant ID card.

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AIR FORCE EVALUATION:

HQ AFPC/DPSFR recommends the applicant’s case be presented to a Congressional representative who could draft special legislation on behalf of the former military spouse to grant her the medical benefits she came to reply on.  DPSFR states that, based on the applicant’s 22 June 1989 divorce and the 18 years, 11 months and 24 days of overlap of marriage and active duty service, the former spouse qualified for benefits as a 20/20/15 category, which would have entitled her to only one year of medical benefits.  There is no dispute that mistakes were made in determining the former spouse’s eligibility for benefits; however, authority does not exist to waive or make exceptions to the eligibility criteria.  HQ USAF/DPPC also researched the situation and advised the family that there were no special programs or exceptions to which the former spouse would qualify.  The HQ AFPC/DPSFR evaluation is at Exhibit C.

HQ AFPC/JA recommends the application be denied.  JA indicates that, in order to receive statutory benefits, the member and the former spouse must have been married for at least 20 years, the member must have served at least 20 years of active service, and at least 20 years of the marriage had to overlap with at least 20 years of the member’s active service.  This provision is known as the 20/20/20 rule.  The applicant admits that his former spouse is not entitled to any benefits under this law as their 20-year marriage overlapped with only 19 years of his active service.

JA states that, to obtain relief, the applicant must show by a preponderance of the evidence that there exists some error or injustice warranting corrective action by the Board.  JA agrees that an error occurred in this case; however, the error did not prejudice the applicant.  Indeed, the Air Force’s error insured to the benefit of the applicant’s former spouse in that she erroneously received medical benefits for nearly 13 years.  Once the error was discovered, it was corrected.

Even though the applicant’s former spouse received benefits after their divorce, and even assuming she relied on those benefits, JA finds no legal authority for continuing to provide the benefits once the error was discovered, even if Air Force personnel erred in interpreting or applying the rules relating to these benefits.  The benefits are statutorily provided, the parties do not bargain for these benefits.  The statute provides the criteria for obtaining the benefit.  If the criteria are not met, the applicant’s former spouse is not entitled to receive the benefits; the law provides no exceptions.

JA states that the applicant has shown no error in his records that can be corrected that would result in the relief requested.  JA presumes the applicant intends for the Board to adjust his retirement date in order to meet the statutory requirements of the 20/20/20 rule.  In addition to there being no legal authority for taking such action, JA notes that not only would the applicant’s former spouse benefit from such an adjustment, but the applicant himself would also benefit financially as he then would be entitled to back pay, allowances and adjustment to his retired pay.  The HQ AFPC/JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

This response to the Air Force evaluations was submitted by the applicant’s daughter (Miss N, R. D---).

The applicant’s daughter indicates that it was only after several months of her mother informing the Air Force of what seemed to be a computer error at the time that the Air Force’s error was corrected.  They do not claim that personnel informed her mother that she qualified for continued benefits, but that she was granted enrollment under 20/20/20 and received those benefits.  Her mother did not move from Ireland to the United Kingdom (UK) to obtain the benefits.  Due to an illness detected in 1989, her mother remained in the UK instead of going home to Ireland.  This was to ensure that the care continued, as promised for life by the USAF.   The Air Force has control on who meets the necessary criteria and should refer to their regulations.  The whole point is that they did not do this in her mother’s case and it can be argued that a contract was made in the absence of adhering to their own enforced law.  Her mother has been caused physical and emotional distress, e.g., the way in which her medical care was immediately terminated by the Air Force and her subsequent financial loss in obtaining medications and legal assistance.  It was not her mother who caused this situation, but the Air Force.  Her mother was informed and granted for the last 13 years the entitlement under the 20/20/20 program and then with four days notice, it was terminated because the Air Force made an error.

In support of this appeal, applicant’s daughter submits copies of medical documents.  The complete submission, with attachments, is at Exhibit F.

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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 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 majority is persuaded that relief is warranted.  The Board majority is aware of the statutory requirements of the 20/20/20 rule.  However, the Board majority is of the opinion that, since the applicant’s former spouse had been relying on the military medical benefits for nearly 13 years, abruptly revoking the benefits has created a hardship.  Had the error been detected earlier, the Board majority believes applicant’s former spouse would have taken the necessary steps to ensure she had adequate health coverage while she was still insurable.  Due to the passage of time and her present medical condition, applicant’s former spouse has gone from being insurable to uninsurable; therefore, it is unlikely that she will be able to obtain the medical benefits she needs at this point in time.  The Board majority considered extending the applicant’s retirement date for one month; however, they did not feel this remedy to be in the best interest of the Air Force.  In this regard, extending the applicant’s retirement date by one month would credit him for time not served and would essentially result in a windfall of increased retired pay for the rest of his life.  Therefore, the Board majority is of the opinion that changing the applicant’s 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 the applicant’s 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 the applicant’s civil records.  In view of the foregoing, and in an effort to offset any possibility of an injustice, the Board majority recommends the applicant’s records be corrected to the extent indicated below.
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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 30 May 1968 and that the last 20 years of the marriage overlapped with his total years of active duty service.

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The following members of the Board considered this application in Executive Session on 30 October 2003, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
              Member

By a majority vote, Ms. XXXXX and Mr. XXXXX recommended granting the relief sought in this application.  Mr. XXXXXvoted to deny the applicant's request but did not desire to submit a minority report.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-01439.

   Exhibit A.  DD Form 149, dated 23 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSFR, dated 3 Sep 03.
   Exhibit D.  Letter, HQ AFPC/JA, dated 18 Sep 03.
   Exhibit E.  Letter, SAF/MRBR, dated 26 Sep 03.
   Exhibit F.  Letter from Applicant’s daughter, dated 10 Oct 03,
               w/atchs.

                                   
                                   Panel Chair

AFBCMR BC-2003-01439

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 APPLICANT be corrected (as an exception to policy) to show that he was married on 30 May 1968 and that the last 20 years of the marriage overlapped with his total years of active duty service.

		
                                     	Director
                                     	Air Force Review Boards Agency