AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  96-03174 

(Deceased) 

COUNSEL:  None  (Counsel listed 

on DD 149 is no longer 
retained by applicant) 

HEARING DESIRED:  Yes 

OCT  2  8 2997- 

APPLICANT REOUESTS THAT: 

Her  late  husband's  records  be  corrected  to  reflect  that  he 
elected spouse coverage under the Survivor Benefit Plan (SBP). 

APPLICANT CONTENDS THAT: 

Her rights were violated because her spousal concurrence in the 
decedent's SBP election was never obtained. The Air  Force never 
informed  her  of  the  change  after  they  had  made  the  initial 
election  on her  behalf. At  the  time  her  late husband  retired, 
they were  experiencing domestic difficulties and  had  separated. 
There  was  never  a  divorce  or  legal  separation.  Later  they 
reconciled  and  lived  as  husband  and  wife  until  his  death.  She 
assumed  she  was  covered  by  the  initial  Air  Force  decision. 
Apparently  her  late husband never realized  she was  not  covered 
because he  always assured her she was.  In 1991, he  suffered a 
stroke with consequent mel'nory loss and, even if he had been aware 
of  it, was unable to corrbct the situation. She is in desperate 
need of this benefit. 

In support of her request, applicant submits, in part, her late 
husband's Retired Pay Account  Statement  (AFAFC Form 0-4571, for 
3 1  October 1972, and a 7 October 1972 letter and fact sheet from 
the  Air  Force  Accounting  and  Finance  Center  (AFAFC)  to  her 
husband pertaining to the newly implemented SBP. 

Applicant's complete submission is attached at Exhibit A. 

4 

STATEMENT OF FACTS: 

Public  Law  (PL) 92-425, which  authorized  implementation of  the 
SBP on 2 1  September 1972, required the spouse of a maried member 
' to be  notified  if, before retirement, the member elc. -ted not  to 
participate in the Plan at the maximum level.  If a  ember made 
no election before retirement ,  the law required maxip 
coverage 
to be  established  for the  spouse and  children. Sect  n 1455 of 

the  law  permitted  members  who  retired  within  180  days  of 
implementation of the SBP to elect not to participate within 180 
days of  their retirement, but did not  require the  spouse to be 
notified  if  the member opted after retirement to  terminate the 
spouse coverage established  in the  absence of  a pre-retirement 
The  US  Court  of  Claims  has  ruled  that  widows  of 
election. 
members who retired after SBP's implementation who are not given 
notice of a sponsor's election are entitled to full SBP coverage 
(Barber v.  US,  Dean v.  US,  Kelly  v.  US). The  spouse's written 
concurrence in elections for less than full coverage is required 
for members retiring after 28 February 1986  (PL 99-145). 

Applicant and the decedent and were married on 26  June 1955. He 
retired effective 1 October 1972 but did not make an SBP election 
prior  to  that  time.  An  AFAFC  letter  to  the  decedent,  dated 
7 October 1972, explained that SBP coverage had been established 
on his  spouse's behalf  in compliance with the provision of  the 
law  that  required  establishment  of  maximum  spouse  and  child 
coverage  if  a  member,  such  as  the  applicant, made  no  election 
before retirement. The letter also provided guidance for changing 
the election. On 25 October 1972, the applicant indicated on the 
SBP  Election  Change, DD  Form  1882,  that  he  elected  child-only 
coverage based on full retired pay for his five children. He also 
marked the block that indicated he was not married. According to 
HQ AFPC/DPPTR,  his  retired pay  records contain no  evidence  the 
applicant  was  notified  of  the  decedent's  post-retirement 
election. Premiums for child-only coverage were deducted from the 
decedent's retired pay until July 1994,  when his youngest child 
attained  age  22  and  lost  eligibility.  The  decedent  died  on 
18 February 1996. 

AIR STAFF EVALUATION: 
The  Chief,  Retiree  Activities  Branch,  HQ  AFPC/DPPTR,  reviewed 
this application and states many members who retired very shortly 
after the SBP's implementation had no opportunity to complete an 
SBP  election before  retirement. In the  absence of  an election, 
maximum spouse and child coverage was automatically established. 
However, there were no legal or regulatory requirements to notify 
the  spouse  of  a  member  who  changed  an  election  during  that 
period. Furthermore, had the Services been required to notify the 
spouse of a member's post-retirement election to decline spouse 
coverage, the spouse would have had no right to effect a change 
to the election. The provision giving a spouse veto rights in a 
member's  election  by  non-concurring  in  the  election  became 
effective 1 March 1986 and applied only to members retiring on or 
after  that  date.  The  notice  provision  in  the  implementing 
legislation required  spousal notice only  if  the  member  elected 
not  to participate before retirement.  In this case, the member 
retired only nine days after SBP's implementation and he did not 
decline coverage before  retiring. The AFAFC acted in compliance 
with  the  statute by  establishing the member's SBP election for 

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96-03 174 

. 

child-only  coverage,  and  neither  statutory  nor  regulatory 
guidance required the applicant be notified. 

The  author  clarifies  these  points  to  refute  the  applicant's 
contention that  her  rights were  violated  and  she was  unfairly 
denied benefits. Even if she had been notified of the decedent's 
post-retirement  election  and  registered  an  objection,  the  law 
made  no provision for changing the election to provide coverage 
for  her.  This  case  differs  from  those  cases  referred  to  as 
Barber cases in that the member did not decline coverage before 
his retirement; in Barber, et  al, the members declined coverage 
before  retiring  and  the  Air  Force  could  produce  no  evidence 
showing the spouses had been notified as required by law. 
, .  
While  the  applicant's  counsel  contends  the  decedent  did  not 
realize the  applicant  was  not  entitled  to  SBP benefits,  it  is 
clear he knew because he ceased paying premiums two years before 
his death. The decedent was provided open enrollment information 
in 1981 and 1992, offering him a second and third opportunity to 
cover the applicant; however, he failed to act. 

Denial  is  recommended. A  method  for  correcting  the  records  is 
provided  if  the  Board  should  decide  to  grant  relief. However, 
approval  should  be  contingent  upon  the  applicant's providing 
proof  that  she  and  the  decedent  were  married  on  the  date  he 
retired and recovery of premiums the decedent would have paid had 
he made the election. 

A complete copy of the evaluation, with attachments, is provided 
at Exhibit B. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant  reviewed  the Air  Force evaluation and  states she was 
married  to  the  decedent  when  he  retired, as  evidenced  by  the 
Certificate  of  Appreciation  she  received when  he  retired.  She 
does  not  know why  he  checked  the  block  that  indicated he  was 
unmarried.  They  were  never  divorced.  Her  husband  suffered  a 
stroke  in  1991,  which  caused  memory  lost  among  other  health 
problems. When the premiums stopped being paid in July 1994 after 
their youngest child turned 22, she did not realize that she was 
to be without any benefits. She relied on her husband's word that 
she  would  be  provided  for.  She  does  not  believe  her  husband 
realized the error in checking the wrong box on a military  form 
20  years  ago.  She  cites  Barber, Dean  and  Kelly,  and  contends 
that,  since  she  was  never  given  the  required  statutory 
notification  of  her  husband's  retirement  election,  she  is 
entitled to full SBP coverage. 

She  provides  13  packets  of  additional  documentation  such  as 
affidavits; employment and retirement information on herself and 

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96-03 174 

. 

her husband; financial documents such as tax  returns, insurance, 
retired  pay  accounts,  etc.;  birth/marriage/death  certificates; 
and pictures of her family. 

Applicant's complete response, with  attachments, is provided  at 
Exhibit D. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error o r   injustice. After a 
thorough  and  careful  review  of  the  evidence  of  record  and 
applicant's  submission,  we  are  not  persuaded  that  her  late 
husband's records should be corrected to reflect that he elected 
spouse  coverage  under  the  SBP.  Public  Law  92-425,  which 
implemented the SBP on 21 September 1972, required the spouse of 
a married member to be notified if, before retirement, the member 
elected not to participate in the Plan at the maximum level. If a 
member  made  no  election  before  retirement ,  the  law  required 
maximum coverage be established automatically for the spouse and 
children.  However, Section 1455 of the law permitted members who 
retired within 180 days of the implementation of the SBP to elect 
not to participate within 180 days of their retirement.  At  this 
time, the law did not  require the spouse to be  notified if  the 
member opted--after retirement--to terminate the spouse coverage 
that  had  been  established  in  the  absence  of  a  pre-retirement 
election. Spousal written concurrence in elections for less than 
full  coverage  applied  only  to  those  members  who  retired  after 
28 February 1986. The provision giving a spouse veto rights in a 
member's election or non-election did not become effective until 
1 March 1986. We note that the decedent retired on 1 October 1972 
and,  since  he  made  no  SBP  election  before  he  retired,  SBP 
coverage was automatically established in behalf of the applicant 
and their children in compliance with the law. When the decedent 
decided on 25 October 1972 to change the coverage to child-only, 
statute did not  require that the applicant be  notified. At  that 
time, she was only required to be  notified, if  her  late husband 
had  declined coverage before  he  retired. Therefore, applicant's 
reliance  on  Barber  v.  US  is  misapplied.  Further,  assuming  i n  
arguendo  that  she  was  required  to  have  been  notified  of  her 
husband's change in election after his retirement, which she was 
not, she would not have had the option at that time to nonconcur 
with his election. Finally, even if the decedent's stroke in 1991 
impaired  his  ability  to  elect  coverage  during  the  1992  open 
season as the applicant contends, we note he could have obtained 
coverage for her  in the  1981 open season but  did not  do  so. In 
view of the foregoing, we conclude that the applicant has failed 

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96-03 174 

to sustain her burden that she has suffered either an error or an 
injustice. We  therefore  find  no  compelling  basis  to  recommend 
granting the relief sought. 

4.  The documentation provided with this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or  without  legal  counsel, would  not 
have  materially  added  to  that  understanding.  Therefore,  the 
request for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  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 this application in 
Executive Session on  9 September 1997, under  the provisions  of 
AFI 36-2603: 

Mr. Henry C. Saunders, Panel Chairman 
Ms. Kathy L. Boockholdt, Member 
Mrs. Barbara A. Westgate, Member 
Ms. D. E. Hankey, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 23 Sep 96, w/atchs. 
Exhibit B.  Letter, HQ AFPC/DPPTR, dated 13 Dec 96, w/atch. 
Exhibit C.  Letter, AFBCMR, dated 30 Dec 96. 
Exhibit D.  Applicant's Response, dated 18 Feb 97, w/atchs. 

P 

HEN Y C. SAUNDERS 
Pa el Chairman 

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96-03 174 

D E P A R T M E N T  OF  T H E   A I R   FORCE 

H E A D O U A R T E R S  A I R   F O R C E   P E R S O N N E L  C E N T E R  

R A N D O L P H  A I R   F O R C E   B A S E   T E X A S  

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 

1 3  o€c 1996 

Requested Correction: 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 Reauest:  Applicant claims her rights were violated because her written 

concurrence in the decedent's SBP election was not obtained. 

Backaround: 

a.  Public Law (PL) 92425, which authorized implementation of the SBP on 21 Sep 72, 

. required the spouse of a married member to be notified if, before retirement, the member 
elected not to participate in the Plan at the maximum level.  If a member made no election 
before retirement, the law required maximum coverage to be established for the spouse and 
children.  Section 1455 of the law permitted members who retired within 180 days of 
implementation to elect not to participate within 180 days of their retirement, but did not require 
the spouse to be notified if the member opted after retirement to terminate the spouse 
coverage established in the absence of a preretirement election. 

b.  The U.S. Court of Claims has ruled that widows (of members who retired after SBPs 

implementation) who are not given notice of sponsor's election are entitled to full SBP 
coverage-Barber v.  U.S.,  676 F.2d 651 (CI. Ct.  1982); b a n  v.  U.S., 10 CI. Ct. 563 (1986); 
and Kellv v.  US., 826 F.2d 1049 (Fed Cir. 1987).  The spouse's written concurrence in 
elections for less than full coverage is required for members retiring after 28 Feb 86 (PL 99- 
145). 
- Facts:  Documents provided by the applicant and from the decedent's military record 
show they were married 26 Jun 55.  The member retired effective 1 Oct 72, but did not make 
an election prior to that time.  Documents provided by the applicant include a copy of a 
7 Oct 72 letter to the decedent from the Air Force Accounting and Finance Center (AFAFC) 
which explained SBP coverage had been established on his spouse's behalf to comply with 
the provision of the law that requires maximum spouse and child coverage to be established if 
a member made no election before retirement.  The letter also provided guidance for changing 
the election.  Subsequently, the decedent elected child only SBP coverage based on full 
retired pay and marked the block that indicated he was unmarried.  The decedent's retired pay 
records contain no evidence the applicant was notified of the member's post-retirement 
election.  Premiums for child only coverage were deducted from the member's retired pay until 
Jul94 when his youngest child attained age 22 and lost eligibility.  The member died 
18 Feb 96. 

Discussion: 

a.  Many members who retired very shortly after the SBP's implementation had no 

opportunity to complete an SBP election before retiring.  In the absence of an election, 
maximum spouse and child coverage was automatically established.  However, there were no 
legal or regulatory requirement to notify the spouse of a member who changed an election 
during that period.  Furthermore, had the Services been required to notify the spouse of a 
member's post-retirement election to decline spouse coverage, the spouse would have had no 
right to effect a change to the election.  The provision giving a spouse veto rights in a 
member's election by non-concumng in the election became effective 1 Mar 86 and applied 
only to members retiring on or after that date. 

b.  The notice provision in the implementing legislation required spousal notice only if 
the member elected not to participate before retirement.  In this case, the member retired only 
nine days after SBPs implementation and he did not decline coverage before retiring.  The 
AFAFC acted in compliance with the statute by establishing the member's SBP election for 
child only coverage, and neither statutory nor regulatory guidance required the petitioner to be 
notified. 

i 

c.  We clarify these points to refute petitioner's contention that her rights were violated 
and she was unfairly denied benefits.  Even if she had been notified of the decedent's post- 
retirement election and registered an objection, the law made no provision for changing the 
election to provide coverage for her.  This case differs from those cases refened to as Barber 
cases, in that the member did not decline coverage before his retirement; in Barber et all the 
members declined coverage before retiring and the Air Force could produce no evidence 
showing the spouses had been notified as required by law. 

d.  Petitioner's counsel states the decedent did not realize the petitioner was not 

entitled to survivor benefits.  However, it is clear the decedent knew the petitioner was not 
covered by SBP because he ceased paying premiums two years before his death.  He was 
provided open enrollment information in 1981 and 1992, offering him a second and third 
opportunity to cover the petitioner, however, he failed to act. 

Recommendation:  There is no evidence of error or injustice and we recommend the 
request be denied.  However, if the Board's decision is to grant relief, the decedent's military 
record should be corrected to show on 30 Sep 72 he elected SBP coverage for his spouse and 
children based on full retired pay.  Approval should be contingent upon (1) the applicant's 
providing proof that she and the decedent were married on the date he retired and (2) recovery 
of premiums the decedent would have paid had he made this election. 

MARYS. WLTER, DAFC 
Chief, Retiree Services Branch 
Directorate of Pers Program Mgt