AIR FORCE BOARD FOR CORRECTION OF MILTTARY RECORDS
RECORD OF PROCEEDINGS
a.
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IN THE MATTER OF:
DOCKET NO: 97- 03688
COUNSEL :
HEARING DESIRED: NO
AUG21W
Applicant requests that her late husband's records be corrected
to show that he elected coverage for her under the Survivor
Benefit Plan (SBP). Applicant's submission is at Exhibit A.
The appropriate Air Force office evaluated applicant's request
and provided an advisory opinion to the Board recommending the
application be denied (Exhibit C). The advisory opinion was
forwarded to the applicant's counsel for review and response
(Exhibit D). As of this date, no response has been received by
this office.
The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
After careful consideration of applicant's request and the
available evidence of record, we find insufficient evidence of
error or injustice to warrant corrective action. The facts and
opinions stated in the advisory opinion appear to be based on the
evidence of record and have not been rebutted by applicant's
counsel. Absent persuasive evidence applicant was denied rights
to which entitled, appropriate regulations were not followed, or
appropriate standards were not applied, we find no basis to
disturb the existing record.
Accordingly, applicant's request is denied.
The Board staff is directed to inform applicant of this decision.
Applicant should also be informed that this decision is final and
will only be reconsidered upon the presentation of new relevant
evidence which was not reasonably available at the time the
application was filed.
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Members of the Board Mr. Thomas S. Markiewicz, Mr. Henry Romo
Jr., and Mr. Walter J. Hosey, considered this application on
19 August 1998, in accordance with the provisions of Air Force
Instruction 36- 2603, and the governing statute, 10, U.S.C. 1552.
/
THOMAS S. MARKIEWICZ
Panel Chair
Exhibits:
A. Applicant's DD Form 149
B. Available Master Personnel Records
C. Advisory Opinion
D. AFBCMR Ltr Forwarding Advisory Opinion
DEPARTMENT O F THE A I R FORCE
HEADQUARTERS AIR FORCE P E R S O N N E L CENTER
RANDOLPH AIR FORCE BASE TEXAS
3 1 MAR 1998
MEMORANDUM FOR AFBCMR
FROM: HQ AFPUDPPTR
550 C Street West Ste 11
Randolph AFB TX 78150-4713
SUBJECT: Application for Correction of Military Records
Reauested 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.
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Basis for Reauest: The applicant claims she never agreed or signed any document
waiving a spouse annuity.
Backaround:
a. Survivors of military retirees may continue to receive a portion of the sponsor's
retired pay only if the member was a participant in one of the annuity plans offered by the
Department of Defense. There is no legal authority for the Air Force to pay the survivor an
annuity if the member did not choose to provide coverage on the survivor's behalf.
b. The Retired Serviceman's Family Protection Plan (RSFPP) was in effect when the
member retired. Members were briefed and required to make their RSFPP elections before
completing 18 years of service. No spouse notification was required. The RSFPP has several
unattractive features and less than 15 percent of members retired during its existence enrolled.
c. Public Law (PL) 92-425, which established the SBP on 21 Sep 72, authorized an
l&month enrollment period for retired members to elect SBP coverage. PL 97-35 later
authorized an additional open enrollment period (1 Oct 81 - 30 Sep 82). During each
enrollment period, members were advised by direct mail of their eligibility to make an election.
The enroltment packets, as well as the Afterburner, USAF News For Retired Personnel,
published during those timeframes, were sent to the member's correspondence address
maintained by the finance center and contained points of contact for members to use to gain
additional information.
d. There were no provisions in the laws during these open enrollment periods requiring
the Services to notify spouses of retired members if the member did not enroll. Federal
Appeals Court decision--Appeal 85-927, Helen Passaro v. U.S.-held that the notice provision
does not apply to a service member already entitled to retired or retainer pay on 21 Sep 72.
Facts: Defense Enrollment Eligibility Reporting System (DEERS) records indicate the
decedent and applicant were married on 3 Dec 52. The member did not enroll in the RSFPP
9703688
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prior to his 1 Oct 69 retirement and there is no evidence he returned an election form during
either SBP open enrollment period. He died on 24 Jun 93.
Discussion: The member had two opportunities to elect SBP coverage for the
applicant but failed to do so. Microfiche records verify the SBP enrollment packet and
newsletter mailed to the decedent during the 81-82 open enrollment period (copy enclosed in
case) was mailed to the address maintained by the finance center at the time, the address
where the applicant continues to reside. SBP is similar to commercial life insurance in that an
individual must elect to participate and pay the associated premiums in order to have
coverage. It would be inequitable to those members who chose to participate when eligible
and subsequently received reduced retired pay, and to other widows whose sponsors chose
not to participate, to provide entitlement to this widow on the basis of the evidence presented.
Recommendation: There is no basis in law to grant relief; therefore, we recommend
that request be denied. However, if the decision of the Board is to grant relief, the decedent's
record should be corrected to show on 21 Sep 72 he made an SBP election for spouse only
coverage based on full retired pay. Approval should be contingent upon the recovery of
premiums the decedent would have paid if he had made the election at that time.
0Ad
PAT PEEK. DAFC
Retiree Services Branch
Directorate Pers Prog Management
9703688
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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE MATTER OF: DOCKET NO: 97-03355 COUNSEL: NONE HEARING DESIRED: NO AUG 2 i Applicant requests that her late husband's records be corrected to reflect that he elected coverage for her under the Survivor Benefit Plan (SBP). The appropriate Air Force office evaluated applicant's request and provided an advisory opinion to the Board recommending the application be denied (Exhibit C). c. There were no provisions in...
The appropriate Air Force offices evaluated applicant's request and provided advisory opinions to the Board recommending the application be denied (Exhibit B). Applicant's response to the advisory opinions is at Exhibit D. After careful consideration of applicant's request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action. i - - 550 C Street West, Suite 14 Randolph AFB TX 78150-4716 MEMORANDUM FOR AFBCMR FROM: HQ...
The evidence also establishes the deceased member’s efforts to provide the applicant with all the benefits she was entitled to as the spouse of a retired service member. Microfiche records verify SBP enrollment packets and newsletters were mailed to the address the decedent provided to the finance center during the 1981-1982 and 1992-1993 open enrollment periods. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the...
AF | BCMR | CY2005 | BC-2005-00953
Subsequently, Public Laws (PLs) 97-35, 101-189, and 105-261 authorized additional SBP open enrollment periods (1 Oct 81 – 30 Sep 82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29 Feb 00, respectively) so that retirees could elect or increase SBP coverage. Similarly, the Air Force may not pay an SBP annuity to the applicant, because the member retired before the implementation of the SBP and he did not choose to provide SBP coverage for her when he was eligible to do so. Exhibit C. Letter,...
AF | BCMR | CY2006 | BC-2005-02915
Public Law (PL) 92-425, which established the SBP on 21 Sep 72, authorized an enrollment period for retired members to elect SBP coverage. A complete copy of the Air Force evaluation is at Exhibit B. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of...
AF | BCMR | CY2006 | BC-2005-02539
PL 92-425, which established the SBP on 21 Sep 72, authorized an 18- month enrollment period (21 Sep 72 - 20 Mar 74) for retired members to elect SBP coverage, but were not required to return an SBP election form in order to decline coverage. RSFPP participants could have terminated previous RSFPP coverage, or retained it in addition to a new SBP election. There were no provisions in the laws during these open enrollment periods requiring the Services to notify spouses of retired members...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.
On 12 Jun 73, the deceased member submitted an SBP election statement during the initial enrollment period, declining coverage. Public Law (PL) 92-425, which established SBP on 21 Sep 72, authorized an 18-month enrollment period for retired members to elect SBP coverage. After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that her late husband’s records should be corrected to show that he elected SBP coverage for her.
AF | BCMR | CY2008 | BC-2008-02569
His record contains a copy of a 28 Apr 93 letter from DFAS-DE advising him, among other things, that the 12 Feb 93 open enrollment election he submitted was “invalid” because block 10 did not indicate the base amount upon which he wished to establish coverage. His open enrollment election form contained what appears to be the monthly SBP premium amount he thought would be collected from his retired pay if he elected coverage on a reduced level of retired pay. Exhibit C. Letter, SAF/MRBR...
There were no provisions in the law at that time to notify spouses if the servicemember did not elect coverage. There is no evidence that the servicemember elected SBP during any of the authorized open enrollments. Exhibit C. Letter, SAF/MRBR, dated 26 Apr 02.