RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00925 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her spouse’s records be corrected to reflect he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP). _________________________________________________________________ APPLICANT CONTENDS THAT: At the time of her husband’s retirement he was suffering from religious delusions and hallucinations as a result of a mood disorder and Post Traumatic Stress Disorder (PTSD). The service member was not mentally competent to make a rational decision. The applicant does not recall ever receiving notice from the Air Force of the service member declining SBP coverage for her. In support of her request, she provides copies of documents extracted from the former service member’s military personnel records, her Affidavit, and a Superior Court of California, County of Solano, Order for Renewal of Lanterman-Petris Short (LPS) Conservatorship. Applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 29 Aug 60, the service member contracted his initial enlistment in the Regular Air Force. He served as an Administration Superintendent. He retired on 1 Oct 80. He served 20 years, 1 month and 2 days of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial. DPSIAR states SBP was established by Public Law (PL) on 21 Sep 72 and it required that the spouse be informed when a married service member declined or elected less than maximum spouse coverage. However, PL 99-145 required service members retiring on or after 1 Mar 86 to obtain spouse concurrence in the SBP election. The Secretary of the Air Force (SAF) makes the SBP election for service members who are determined to be incompetent by military medical officers, the Department of Veterans Affairs (DVA) or by a court of competent jurisdiction. The retiring service member’s next-of-kin (NOK), as identified on the disability retirement orders, must be briefed on the options and effects of the SBP. The NOK, as the person most knowledgeable of the service member, recommends the SAF elect the SBP coverage they believe the service member would select if able to act on their own behalf. Service members, who are married at retirement and do not elect SBP coverage for an eligible spouse, may not provide coverage for the spouse in the future, unless Congress authorizes an open enrollment period. If a service member becomes incompetent following retirement, the service member’s legal representative may request the SAF make an open enrollment election on the service member’s behalf. DPSIAR further states the applicant contends her husband was not mentally competent to make a rational decision regarding SBP at the time of his retirement, however, she has not provided any evidence to show the service member was found mentally incompetent by Air Force medical authorities. The service member failed to elect SBP coverage during five open enrollment periods. If the applicant had obtained legal conservatorship of the service member during any of the SBP open enrollments, she could have submitted a request to the SAF to elect coverage on her behalf. SBP is similar to commercial life insurance in that an individual must elect to participate during the opportunities provided by law and pay the associated premiums in order to have coverage. To approve this request would provide the service member an additional opportunity to elect SBP coverage not afforded other retirees similarly situated. The complete AFPC/DPSIAR evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states she was not notified as required by law of her husband’s decision to not elect SBP coverage. Since 1994 she has been taking care of her husband and his property under a general power of attorney. The DVA doctors advised that her husband needed to be cared for full time in a DVA contracted facility. The county then assisted her in establishing conservatorship. She believes there is no connection between her conservatorship and the open enrollment period. Her contention is that they suffered an injustice because she did not receive the statutorily required notice of election and the regulatory requirement of a counseling session at retirement. She believes she should be granted SBP coverage based on Kelly v. U. S. The applicant’s complete letter is at 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 file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. The applicant's complete submission was thoroughly reviewed and her contentions were duly noted. However, we do not find the applicant’s assertions and the documentation provided in support of her appeal sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (OPR). Therefore, we agree with the recommendation of the OPR and adopt its rationale as the basis for our decision the applicant has failed to sustain her burden of establishing the existence of either an error or an injustice. Accordingly, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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-2010-00925 in Executive Session on 14 Sep 10, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Mar 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 14 May 10. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit D. Letter, Applicant, dated 15 Jun 10. Panel Chair