RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00672
XXXXXXX (DECEASED)	COUNSEL:  NONE
APPLICANT: XXXXXXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be entitled to benefits under the Survivor Benefit Plan 
(SBP).

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APPLICANT CONTENDS THAT:

When her late husband retired, she was not included in any 
discussions or decisions involving his military affairs and was 
not aware that he had elected to decline SBP coverage.  She now 
understands that she should have received a notice from the Air 
Force notifying her of his decision.

In support of her request, the applicant provides a notarized 
personal statement; copies of the decedent’s death certificate; 
marriage license, and other supporting documents.

The applicant's complete submission, with attachments, is at 
Exhibit A.

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STATEMENT OF FACTS:

The applicant and the service member were married on 29 Sep 56.  
The service member died on 22 Jan 13.

Other relevant facts pertaining to this application, extracted 
from the applicant’s military records, are contained in the 
letter prepared by the appropriate office of the Air Force. 

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AIR FORCE EVALUATION:

AFPC/DPSIAR recommends granting relief.  They note that the 
record should be corrected to show that, effective 30 Nov 76, 
the decedent elected spouse only SBP coverage based on full 
retired pay.  Approval should be contingent upon recovery of SBP 
premiums the decedent would have paid had he made the election 
at that time.

Public Law (PL) 92-425, which established the SBP effective 
21 Sep 72, required that the spouse be informed when a married 
member declined or elected less than maximum spouse coverage.  
The U.S. Court of Claims has consistently ruled that widows of 
members retiring after SBP's implementation, who were not given 
notice of the sponsor's election, are entitled to full SBP 
coverage-Barber v. U.S., 676 F.2d 651 (Cl. Ct. 1982); Dean v. 
U.S., 10 Cl. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 1049 
(Fed Cir. 1987)--commonly called Barber cases.  There was no 
requirement for spouses to concur in the SBP elections until 
passage of PL 99-145 which applies only to members retiring on 
or after 1 Mar 86.  In this case, as in all Barber cases, the 
facts are essentially the same: there is no record the required 
notice was sent to the applicant and the applicant has provided 
a sworn statement that she did not receive notification that the 
decedent had declined SBP coverage.

Defense Finance and Accounting Service (DFAS) records reflect 
the member declined SBP coverage prior to his 1 Dec 76 
retirement. Neither the decedent’s election form, nor evidence 
that the required notice was or was not sent to the applicant 
could be located.  

In the event relief is granted, the unpaid contributions to the 
SBP that would have been deducted from the member's retired pay 
through the date of his death (approximately $132,295.00) must 
be collected from any annuity payment the applicant would be 
entitled to receive.

The complete AFPC/DPSIAR evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 21 Jun 13 for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit C).

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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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice warranting 
corrective action.  The Air Force office of primary 
responsibility has adequately addressed the issues presented by 
the applicant and we are in agreement with its opinion and 
recommendation.  In addition, we remind the applicant that 
approval is contingent upon recovery of SBP premiums the 
decedent would have paid had he made the election at that time.  
Accordingly, we recommend the decedent’s record be corrected as 
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 to show that on 
30 November 1976, he elected spouse only coverage based on full 
retired pay.

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The following members of the Board considered AFBCMR Docket 
Number BC-2013-00672 in Executive Session on 5 December 2013, 
under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  
Although chaired the panel, in view of her 
unavailability, has signed as Acting Panel Chair.  The 
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 Feb 13, w/atchs.
     Exhibit B.  Letter, AFPC/DPFFF, dated 3 Jun 13.
     Exhibit C.  Letter, SAF/MRBR, dated 21 Jun 13.




                                   Acting Panel Chair





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