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

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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.

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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.

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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.  

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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.

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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.

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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 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.

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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 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.

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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:

				XXXXXXXXXX, Vice Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, 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

                                   XXXXXXXXXX
                                   Acting Panel Chair