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AF | BCMR | CY1998 | 9800175
Original file (9800175.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  98-00175
                 INDEX CODE:  137.00
      XXXXX COUNSEL:  None

      XXXXXX           HEARING DESIRED: No


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show he elected  spouse  coverage
in the Retired Serviceman’s Family Protection Plan (RSFPP)  and/or  Survivor
Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband always assumed that she would receive RSFPP/SBP benefits on  his
death and that no further action needed to be taken by him.   She  is  quite
sure her husband was not aware that she  would  not  receive  some  type  of
annuity when he passed.  Her income has declined  from  $39,000  a  year  to
$9,000 a year and $1,000 plus is  taken  from  that  for  health  insurance.
This has forced her into living a very destitute life  style.   She  had  to
file bankruptcy even though her credit was in good standing.  She  lost  her
automobile, and her home has been foreclosed upon.  Her  husband  died  from
an unexpected heart attack.  Unfortunately, the insurance on their home  was
for accidental death which they were not aware of.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member and applicant were married on 7 June 1953.   The  member
did not enroll in the RSFPP  prior  to  his  1  September  1969  retirement.
There is no evidence he returned an election form  during  any  of  the  SBP
open enrollment periods.  He died on 5 December 1996.

The RSFPP was the annuity plan 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.

Public Law (PL) 92-425, which established the  SBP  on  21  September  1972,
authorized an 18-month enrollment period for retired members  to  elect  SBP
coverage.  Pls. 97-35 and  101-189  later  authorized  two  additional  open
enrollment periods: 1 October 1981 - 30 September 1982 and 1  April  1992  -
31 March 1993, respectively.  During all open  enrollment  periods,  members
were advised by direct mail of their eligibility to make an  election.   The
enrollment packets, as well  as  the  Afterburner,  USAF  News  For  Retired
Personnel, published during those timeframes, were sent by  direct  mail  to
the member’s correspondence address maintained by  the  finance  center  and
contained  points  of  contact  for  members  to  use  to  gain   additional
information.

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  September
1972.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR, reviewed this application and  states  that  microfiche  records
verify SBP enrollment packets and newsletters mailed to the decedent  during
the 1981 - 1982 and 1992 - 1993 open enrollment periods were mailed  to  the
decedent’s address maintained by the finance center at  the  time.   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.  There is no  evidence  of  an
Air Force error or injustice in this case and  we  recommend  the  requested
relief be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 18 May 1998, for review and response.  As of this date, no  response  has
been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence  of  probable  error  or  injustice.   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  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling basis to recommend  granting
the relief sought in this application.

_________________________________________________________________

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 16 July 1998, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 14 Jan 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPTR, dated 4 May 98.
      Exhibit D. Letter, AFBCMR, dated 18 May 98.





                             Panel Chair

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