RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-02166
            INDEX CODE: 137.03

            COUNSEL:  None

            HEARING DESIRED: No


________________________________________________________________

APPLICANT REQUESTS THAT:

His original enrollment in the Survivor Benefit Plan  (SBP)  be  voided  and
that he and his wife be refunded the $16,392 they  unnecessarily  paid  into
the fund.

________________________________________________________________

APPLICANT CONTENDS THAT:

The original election form, AF Form 430, made no reference nor suggested  or
hinted of any relationship between SBP  and  the  Veterans  Administration’s
Dependency and Indemnity Compensation (DIC).  Veterans who  are  rated  100%
disabled at the time of their death or who die as a result of their service-
connected disability, are entitled to DIC.  Consequently,  he  assumed  that
SBP would be like the Retired Serviceman’s Family  Protection  Plan  (RSFPP)
in that the annuity would not affected by DIC.  After  reading  a  statement
in the Afterburner, he contacted the Defense Finance and Accounting  Service
(DFAS).  He was advised that his wife’s SBP annuity would be offset by  DIC.
 In his case, his $920 SBP would be offset by his $1,035 DIC.   Needless  to
say, his wife, upon his demise, would not receive any money  from  SBP.   In
Oct 95, he requested that DFAS withdraw him from the SBP  and  all  premiums
be returned to him since he should not  have  participated  in  SBP.   After
much confusion and error, he was withdrawn from  SBP  but  advised  that  he
could not get a refund of premiums until he dies, at  which  time  his  wife
would be refunded the $16,392,  without  interest.   After  his  inquiry  to
DFAS, he received an SBP Withdrawal Fact Sheet, DFAS-CL Form 1741/115a.   It
somewhat explains the impact of DIC upon SBP.   Had  this  information  been
furnished with the enrollment form, he is confident he would  have  realized
that as a 100% disabled E-7, his DIC entitlement  would  have  exceeded  his
SBP, and he would not have enrolled.

Applicant's complete submission is attached at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Prior to his disability retirement, effective 20 Jul 68, the applicant  made
an election under the RSFPP.

Applicant did  not  elect  coverage  during  the  SBP’s  initial  enrollment
opportunity, but elected spouse coverage following enactment of  Public  Law
(PL) 97-35 (1 Oct 81 – 30 Sep 82).   He  was  rated  100%  disabled  by  the
Department of Veterans Affairs (VA) at the time  of  his  election  and  his
retired pay was totally offset by his VA disability compensation,  requiring
him to make direct remittance payments for the SBP to the finance center.

He maintained  coverage  and  paid  premiums  until  he  withdrew  from  SBP
participation under PL 96-402, effective 1 Nov 95.  There  is  no  provision
under the law to receive a refund of  premiums  paid  retroactively  to  the
first  date  the  applicant  became  eligible  to  withdraw.   However,  his
surviving spouse receives a  refund  of  SBP  premiums  resulting  from  the
reduction to the SBP annuity after the VA awards DIC.

PL 96-402, effective 1 Dec 80, permits retirees  rated  by  the  VA  totally
disabled from a service-connected cause for five continuous years since  the
effective date of retirement, or ten continuous years if award  was  granted
after retiring, to withdraw from SBP.  In these cases, the  retiree’s  death
would be “presumed” to be as a  result  of  a  service-connected  cause  and
survivors would be entitled to DIC.  The DIC a spouse receives  reduces  the
monthly SBP annuity.

________________________________________________________________

AIR FORCE EVALUATION:

The Defense Finance and Accounting Service - Cleveland Center,  Retired  Pay
Operations, DFAS-CL/FRAB, reviewed this application and  indicated  that  no
objection would be offered to a correction showing that  applicant  did  not
elect into the SBP.

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

The Chief, Retiree Services Branch, AFPC/DPPTR,  reviewed  this  application
and indicated that prior to passage of PL  96-402,  information  about  this
proposed legislation was  contained  in  the  Jul –  Aug  80  issue  of  the
Afterburner, USAF News for Retired Personnel.   After  the  legislation  was
approved, a more detailed article was included  in  the  Nov-Dec  80  issue.
Further, packages outlining the 1981  -  1982  SBP  open  enrollment  period
contained information about the withdrawal provision  for  totally  disabled
members.  Nevertheless, the applicant completed and sent the form  contained
in the enrollment package  to  the  finance  center  to  establish  his  SBP
coverage.  While the Services  provide  important  information  to  retirees
about benefit and entitlement issues, it is impossible to ensure that  every
retiree  read  and  understand  each   article.    It   is   each   person’s
responsibility to make the SBP election that  best  fits  his  personal  and
family circumstance.  Approval of this request would provide  the  applicant
an opportunity not afforded other retirees and  the  facts  do  not  support
exceptional relief.  There is no evidence of  error  or  injustice  in  this
case; therefore, DPPTR recommends the request be denied.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states that when he  became
aware of SBP in the early 80’s, based upon the information provided  by  the
Air Force, he recognized SBP as a good investment  that  would  provide  his
wife with additional financial security.  However, when he read in  the  Sep
95 issue of the Afterburner that  “...100%  disability  for  10  consecutive
years allows you to withdraw from  any  participation  in  the  SBP  as  DIC
becomes automatic”, he called  DFAS  Cleveland  and  was  advised  that  DIC
offsets SBP.  He then realized that his decision to participate in  SBP  was
a mistake.

Applicant's complete response is attached at Exhibit E.

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  While we agree that  it  was  the
applicant’s responsibility to read and understand information regarding  his
benefits and entitlements in order to make the SBP election  that  best  fit
his personal and family circumstance, we  believe  reasonable  doubt  exists
that he was not aware that any DIC benefit his spouse received would  reduce
her monthly  SBP  annuity.   Therefore,  we  believe  any  doubt  should  be
resolved in favor of  the  applicant  and  recommend  that  his  records  be
corrected as indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that on 8 Sep 82,  he  elect  to  decline
coverage under SBP.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 April 2000, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. Mike Novel, Member
              Ms. Kathy L. Boockholdt, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 31 Jul 98, w/atchs.
     Exhibit B.  Letter, DFAS, dated 29 Jan 99.
     Exhibit C.  Letter, AFPC/DPPTR, dated 26 May 99.
     Exhibit D.  Letter, AFBCMR, dated 7 Jun 99.
     Exhibit E.  Letter fr applicant, dated 4 Aug 99.




                                   BARBARA A. WESTGATE
                                   Panel Chair

INDEX CODE:  137.03

AFBCMR 98-02166




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation  of  the  Air  Force
Board for Correction of Military Records and under the authority of  Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the  Department  of  the  Air  Force
relating to, be corrected to show that on 8 September 1982,  he  elected  to
decline coverage under the Survivor Benefit Plan (SBP).







                                                         JOE G. LINEBERGER
                                                         Director
                                                          Air  Force  Review
Boards Agency