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AF | BCMR | CY1998 | 9703688
Original file (9703688.pdf) Auto-classification: Denied
AIR FORCE BOARD FOR CORRECTION OF MILTTARY RECORDS 

RECORD OF PROCEEDINGS 

a. 

* 

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. 

- 

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. 

~~ 

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 
- 

..  . 

. 

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 

. . . . . . . . . . . . 

Y 

. . 

. 



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