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AF | BCMR | CY1999 | BC-1998-00419
Original file (BC-1998-00419.doc) Auto-classification: Denied

                            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

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