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AF | BCMR | CY1997 | 9602221
Original file (9602221.pdf) Auto-classification: Approved
DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 96-02221 

Nov  0 4 1997 

MEMORANDUM FOR THE CHIEF OF STAFF 

Under the authority of Section 1552, Title 10, United States Code, Air Force 

Instruction 36-2603, and having assured compliance with the provisions of the 
above regulation, the decision of the Air Force Board for Correction of Military 
Records is announced, and it is directed that: 

of the Department of the Air Force relating to 
e corrected to show that on 31 January 1980, 
e Survivor Benefit Plan based on full retired 

. 

RP 

OND H. WELLER 

ief Examiner 

- 

h r  Force Board for Correction 
of Military Records 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 9 6 - 0 2 2 2 1  

WV  0 4  1997- 

MEMORANDUM OF CONSIDERATION OF APPLICATION BEFORE THE AFBCMR 

SUBJECT : 

Having carefully reviewed this application, we agree with 
the recommendation of the Air Force and adopt the rationale 
expressed as the basis for our decision that the applicant has 
been the victim of either an error or an injustice. 
under the authority delegated in AFI 3 6 - 2 6 0 3 ,   the applicant's 
records will be corrected as set forth in the accompanying 
Memorandum for the Chief of Staff signed by the Executive 
Director of the Board or his designee. 

Therefore, 

id& 
ane  Chairman LLw 

Attachment: 
Ltr, HQ AFPC/DPPTR, dtd 6  Oct 97 

B 

U.S. AIR FORCE 

1 9 4 7  -  1 9 9 7  

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS AIR  FORCE PERSONNEL CENTER 

RANDOLPH AIR  FORCE BASE TEXAS 

- 

3 @CT 

{:;; 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPC/DPPTR 

550 C Street West Ste 11 
Randolph AFB TX  78150-4713 

SUBJECT:  Application for Correction of Military Records 

Reference: 

Requested Correction:  The applicant, widow of the above-named retired member, is 

requesting corrective action that would entitle her to a Survivor Benefit Plan (SBP) annuity. 

Basis for Request:  The applicant swears, under penalty of perjury, that she was not 

notified of her husband's SBP decision. 

Backaround:  Public Law (PL) 92-425, which established the SBP, required the spouse 

be notified when a member declined or elected less than maximum spouse coverage. 

Facts:  Documents provided by the applicant establish that she and the member were 

married on 14 Aug 60.  Defense Finance and Accounting Service (DFAS) records indicate that 
the member declined SBP coverage prior to his 1 Feb 80 retirement.  The member's election 
form has not been located and there is no evidence that the required notice was or was not 
sent to the applicant.  The member died on 26 May 96. 

Discussion:  The U. S. Court of Claims has consistently ruled that widows who are not 

given notice of their 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 CI. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 
1049 (Fed Cir. 1987).  In all these cases the facts were essentially the same as they are in this 
case.  There was no record the required notice was given to the applicant.  After the death of 
the retiree, the widow provided a sworn statement that she was not counseled, advised, or 
aware her husband did not elect SBP coverage on her behalf. 

Recommendation: We recommend the decedent's records be corrected to show on 
31 Jan 80 he elected spouse SBP coverage based on full retired pay.  Approval should be 
contingent upon recovery of premiums the decedent would have paid had he made the 
election at that time. 

PAT PEEK, DAFC 
Chief, Retiree Services Branch 
Directorate of Pers Program Management 

ADDENDUM TO 

RECORD OF PROCEEDINGS 

The following members of the Air  Force Board  for Correction of 

Military  Records considered this case in Executive  Session on 

28 October 1997,  in accordance with AFI 36-2603 and 10 USC 1552. 

Mr.  Vaughn E.  Schlunz,  Panel Chairman 

Mr.  Joseph G.  Diamond,  Member 

Mr.  Patrick R.  Wheeler,  Member 



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