RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-00419
INDEX CODE: 137
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS:
Corrective action that would entitle her to a Survivor Benefit Plan
(SBP) annuity plus 20% Supplemental SBP (SSBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Applicant states that her deceased husband declined SBP coverage
because he was advised that he would probably be declared 100%
disabled. She also states that she does not recall signing or mailing
back any papers on SBP.
In support of her request, applicant submits a four-page list of
events pertaining to her case, a copy of her deceased husband’s death
certificate, a copy of his DD Form 214 (Certificate of Release or
Discharge From Active Duty), a copy of his Retirement Special Order, a
copy of the Veterans Administration service connected disabilities and
evaluation, and a marriage certificate.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The Air Force indicated that the applicant and her deceased husband
were legally married at the time of his 4 May 82 disability
retirement. Prior to his retirement, he declined coverage under the
SBP. The law controlling the SBP did not require spouses to agree
with the member’s election; therefore, the applicant’s written
concurrence was not obtained. Her deceased husband was subsequently
rated 100% disabled by the VA, his retired pay was completely offset
by his disability compensation, and he died on 6 Mar 92. The VA
verifies that the applicant applied for and is in receipt of
Dependency and Indemnity Compensation (DIC) effective the month
following the date of death of her husband.
_________________________________________________________________
AIR FORCE EVALUATION:
The Chief, Retiree Services Branch, AFPC/DPPTR, reviewed this
application and states Public Law (PL) 99-145 (8 Nov 85 but effective
1 Mar 86) requires a spouse’s written concurrence be obtained whenever
a married retiree elects less than full spouse SBP coverage. If a
spouse does not concur in the decision, full coverage will be
established by operation of law. PL 101-189, 29 Nov 89, established
SSBP and authorized a one-year open enrollment period (1 Apr 92 to
31 Mar 92) for retirees to elect SSBP. Premiums for SBP are deducted
from the retiree’s pay. In the event retired pay is reduced by the
amount of disability compensation from the Department of Veterans
Affairs (VA), direct remittance payments are established. If the
retiree dies from a condition related to the service-connected
disability, the surviving spouse may be entitled to receive DIC, the
amount of DIC reduces the SBP annuity. DPPTR further states that the
applicant’s claim that her husband declined SBP coverage because he
believed his retired pay would be offset by VA compensation and his
death would result in her receiving DIC is understandable. It is
reasonable to assume that the member believed that the cost of SBP was
unnecessary in light of the assumed DIC entitlement. It is each
retiree’s responsibility to make the election that best suits his or
her personal situation. Considering the gravity of the retiree’s
health at the time of his retirement, it must be assumed that he took
every precaution to assure his family was provided for in the event of
his death and made his SBP election based on his family’s best
interest at that time. Furthermore, SSBP was not available at the
time of the member’s retirement and he died prior to its 1 Apr 92
implementation. Although well past the three-year statute of
limitations for filing a request for correction of military records,
the only explanation the applicant offers why she waited over six
years to request this correction is her recent discovery that DIC
payments will be suspended if she remarries. There is no evidence of
error or injustice in this case. Therefore, DPPTR strongly recommends
denial of the request.
A complete copy of the Air Force evaluation is attached at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant reviewed the Air Force evaluation and provided a one-page
response (see Exhibit D).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
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 25 May 1999, under the provisions of AFR 31-3:
Mrs. Barbara A. Westgate, Panel Chair
Mr. Mike Novel, Member
Ms. Ann L. Heidig, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Feb 98, w/atchs.
Exhibit B. Letter, AFPC/DPPTR, dated 25 Jan 99.
Exhibit C. Letter, AFBCMR, dated 8 Feb 99.
Exhibit D. Applicant's Response, dated 17 Feb 99.
BARBARA A. WESTGATE
Panel Chair
AF | BCMR | CY1999 | BC-1998-00419
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