RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01024
		INDEX CODE:  137.01

		COUNSEL:  

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Corrective action be taken that would entitle her to a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

She would have pursued this issue sooner had she not been led to believe that her claim for survivor benefits would be tolled until her own retirement.  Upon her retirement from active duty in the US Army, she found out this was not the case and that she had been led astray.  Her now deceased husband retired in 1962 and had paid SBP premiums for over 30 years prior to his death.  His first wife predeceased him and they married in February 1995.  They were married for 345 days when the decedent passed away.  She contends that under the legal principal of equity and good conscience, she should be awarded the survivor benefits her deceased husband paid for and clearly meant for her to have after he sacrificed for so many years to provide it.  She notes a precedent for the exercise of equity and good conscience as found in 38 United States Code (U.S.C.) 5302.

She further contends that the requirement that a member live for one year after marriage, whether with the first or second spouse, or have a child by either the first or second spouse, is so lacking in rational justification as to deny the surviving spouse due process of law in violation of the Fifth Amendment.  The foregoing is especially true when the requirements of 10 U.S.C. 1447(7)(A)(B), are compared to the provisions of 10 U.S.C. 1477 which concerns death benefits.  In 10 U.S.C. 1447, there is no requirement that a “surviving spouse” be married for one year.  The only difference being the choice of words “surviving spouse” rather than “widow.”  

She states that even though they were married 20 days shy of a full year, they lived together for a couple of years prior to their marriage.  She states her husband’s last remaining years were marred not only by physical ailment but by the discomfort and trauma of his son being sentenced to prison.  She has sought redress within the Veteran’s Administration (VA) while working full-time, caring for her aging mother and her sister, as well as visiting her stepson in prison, but has found no relief.  She has shared her late husband’s final years and believes he intended for her to receive those SBP benefits.  She states her husband paid into the program for years with the intention of looking after those he loved and cared for.  

In support of her appeal, the applicant has provided copies of a letter from her counsel. a personal statement, a letter of support from a former commander, her retirement order, a certificate of marriage, her Army DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, her deceased husband’s retirement order, his death certificate, their marriage license, as well as several pertinent documents from the Defense Finance & Accounting Service (DFAS).

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

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STATEMENT OF FACTS:

The deceased member was retired for disability effective 21 September 1967.  He was married at the time and elected spouse only coverage based on full, retired pay during the SBP’s initial enrollment opportunity from 21 September 1972 through 20 March 1974.  His first spouse died on 30 November 1992 and SBP costs and coverage were suspended at that time.  The decedent and the applicant married on 18 February 1995 and he died on 20 January 1996, twenty days before the end of their first year of marriage.

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends denial.  DPPTR states the applicant claims she and the decedent lived together for a “couple of years” before their marriage; however, she provides no evidence they were in a common-law marriage or that the State in which they lived at the time recognized such unions.  Regarding Title 10 U.S.C. Section 1477’s not requiring a surviving spouse to be married to the member for one year in order to be entitled to death benefits, DPPTR argues that Section 1477 pertains to death gratuity paid to the surviving spouse of a member who either died on active duty or within 120 days of retirement.  Section 1477 does not apply to SBP.  Section 1447 (7A) however, defines a widow as the surviving wife of a person “who was married to him for at least one year immediately before his death” and there is no provision that authorizes a waiver of that criteria, absent the birth of a child before the first anniversary of the marriage.

DPPTR’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant’s counsel on 30 April 2004 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 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 and sympathize with her situation; however, we agree with the opinion and recommendation of the Air Force office 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.  Absent the birth of a child between the two, evidence of a state-recognized common-law marriage, or evidence they were married longer than one year, there is no legal basis with which to grant relief.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2004-01024 in Executive Session on 20 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, , dated.
    Exhibit D.  Letter, SAF/MRBR, dated 30 April 2004.