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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