RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04928 (APPLICANT) COUNSEL: NONE (DECEASED) HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: Her deceased husband’s record be corrected to entitle her to an annuity under the Survivor Benefit Plan (SBP). ________________________________________________________________ _ APPLICANT CONTENDS THAT: She intended to be married to the former service member for many years; unfortunately, he died five days prior to their one-year wedding anniversary. The applicant's complete submission, with attachment, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 17 Oct 98 Public Law 105-261 authorized a paid-up provision to the SBP. The law states that, effective Oct. 1, 2008, no reduction may be made in the retired pay of a participant in SBP for any month after the latter of the 360th month of retired pay reduction and the month during which the participant reaches 70 years of age. On 29 Apr 11, the applicant and the former service member were married. On 24 Apr 12, the former service member passed away at the age of 70, five days prior to their one-year wedding anniversary. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is included at Exhibit C. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPFFF recommends denial, indicating there is no evidence of an error or injustice. The Defense Enrollment Eligibility Reporting System (DEERS) records indicate that the deceased former member was married to his former spouse on 26 Dec 68 and elected spouse only SBP coverage for her prior to his 1 Jun 82 retirement. On 20 Sep 10, his former spouse died and the Defense Finance Accounting Service suspended the former service member’s SBP coverage. DEERS reflects the former service member and the applicant married on 29 Apr 11 and in May 2011, he requested DFAS-CL reinstate the suspended spouse coverage on the applicant’s behalf. However, the former service member died five days before the first anniversary of their marriage, rendering the applicant ineligible to receive an SBP annuity as she did not meet the criteria set forth in the governing statute to qualify for an SBP annuity. Title 10 defines a widow (for the purposes of SBP) as the surviving spouse of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least one year immediately before his death. The law does not provide a waiver for the one-year, post-retirement marriage requirement, unless the spouse is the parent of issue of a child born before the first anniversary of the marriage. As the applicant did not have a child, this criteria [sic] was not met. It would be inequitable to other members and their surviving spouses, who were not married for one full year, and who likewise, did not attain eligibility to receive SBP payments, to provide the benefit to the applicant. While it is unfortunate the former service member did not live longer, there is no basis in law to authorize payment of SBP to the applicant. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her husband made 340 SBP premium payments prior to his death on behalf of his former spouse and herself, and was only 20 payments away from being “paid-up” in the program. She has some physical and mental injuries and no money to take care of her. She has dealt with these issues for years and is in need of the SBP to care for herself, as she has nothing to live on (Exhibit E). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant has no recommendation in this case, but presents possible circumstances leading to the death of the applicant’s spouse. Under the decedent’s circumstances prior to his death, introduction of life saving measures, such as systemic antibiotics, corticosteroids, vasopressors to maintain blood pressure, careful fluid balance, and often artificial ventilator support are, unfortunately, not always met with success. Nevertheless, although the prognosis for recovery of an individual in the decedent’s state is often very poor, life is sometimes maintained in a vegetative state that could exceed several days from time of onset. However, this hypothetical scenario does not change the policy realities in this case. While it might appear disingenuous to not waive a mere five days to allow the applicant’s eligibility, the application of the rules may be the Board’s only defensible option by necessity. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the AFBCMR Medical Consultant evaluation was forwarded to the applicant on 28 Oct 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, including her rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DPFFF and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While we empathize with the applicant’s plight, there is no legal or equitable basis for us to recommend granting relief. While the applicant may believe that this unfortunate situation renders her the victim of an injustice, there is no evidence that she has been treated differently than those similarly situated. While we also note the comments of the AFBCMR Medical Consultant indicating that life is sometimes maintained in a vegetative state that could exceed several days from time of onset, the law does not provide a waiver for the one-year, post- retirement marriage requirement. While it’s regrettable the decedent passed away five days prior to the applicant attaining eligibility, we do not find the circumstances so extraordinary to conclude that the applicant is the victim of an injustice. Therefore, in view of the above, we find no basis upon which to recommend favorable consideration of the applicant’s request. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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-2012-04928 in Executive Session on 16 Jan 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFFF, dated 14 Nov 12. Exhibit D. Letter, SAF/MRBR, dated 10 Dec 12. Exhibit E. Letter, Applicant, dated 14 Jan 13. Exhibit F. Letter, SAF/MRBC, dated 28 Oct 13. Exhibit G. Letter, BCMR Medical Consultant, dated 28 Oct 13. Panel Chair FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 2 4 DEPARTMENT OF THE AIR FORCE WASHINGTON DC