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AF | BCMR | CY2001 | 0102058
Original file (0102058.doc) Auto-classification: Approved

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                RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER:
01-02058
COUNSEL:
NONE
HEARING DESIRED:
NOT INDICATED
APPLICANT REQUESTS THAT:
Her husband's records be corrected to show she is  entitled  to  a  Survivor
Benefit Plan (SBP) annuity.
APPLICANT CONTENDS THAT:
The reasons the applicant believes the records to be in error or unjust  and
the evidence submitted in support of the appeal is at Exhibit A.
STATEMENT OF FACTS:
The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force, which is at Exhibit C.
AIR FORCE EVALUATION:
HQ  AFPC/DPPTR  states  that  in  the  past,  DPPTR  recommended   favorable
consideration in cases in which the widow petitioners claim  they  were  not
notified of their sponsor's SBP election and
The Air Force had no evidence to refute their claims.   In  a  21  May  1992
decision (B-243146, 147, and 148), the Comptroller General CG)  stated  that
Air Force Board of Correction for Military Records (AFBCMR) action  was  not
necessary to create SBP entitlement because of the government's  failure  to
inform the spouse that SBP had not been elected.   The  CG   concluded  that
while the Correction Board can change the facts in order to give rise  to  a
claim, it cannot, by changing the facts, resurrect  a  claim  on  which  the
Barring Act has run. DPPTR indicated that  the  Judge  Advocate  recommended
DPPTR continue to advise the AFBCMR in these matters as they  did  prior  to
the cited Comptroller General's decisions. If the  Board's  decision  is  to
grant relief in this case, the decedent's  record  should  be  corrected  to
show on 31 May 1982, he elected


full spouse SBP coverage based on retired pay (Exhibit C) .
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 7 September 2001 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 not timely filed; however, it is in the  interest  of
justice to excuse the failure to timely file.
3. Sufficient relevant  evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice.  After  thoroughly  reviewing  the
circumstances of this case, we are in agreement with the Air Force that  the
applicant is  entitled  to  an  annuity  under  the  Survivor  Benefit  Plan
program. Additionally, we note that  the  United  States  Court  of  Federal
Claims recently upheld a decision made by  this  Board  in  a  similar  case
(Pride v. United States, 40  Fed  CI  730  (1998)).   Therefore,  since  the
applicant was not properly advised of her spouse's  decision  not  to  elect
coverage, as required  by  the  applicable  statute,  there  is  no  dispute
concerning applicant's entitlement to survivor benefits under  the  criteria
set forth in Barber v. United States, 676 F.2d 651 (Ct. CI. 1982) .
4. The recent holding in Pride v. United States, by  the  Court  of  Federal
Claims, validates the Correction Board's      earlier  decision  to  correct
records  in  cases  similar  to  applicant's  appeal,  thereby  entitling  a
surviving spouse to submit a claim for an annuity. The Board's charter  (the
Act of August 2, 1946, 60 Stat. 812, 837, as amended,  10  U.  S.  C.  1552)
authorizes the Secretary, acting through a civilian board, to  'correct  any
military record of  that  department  when  he  considers  it  necessary  to
correct an error or remove an injustice', and provides that  the  department
may pay 'a claim for the loss of pay, allowances, compensation,  emoluments,
or other pecuniary benefits. ..if, as a result of correcting a record  under
this section, the amount is found to be due. ...”   Therefore,  in  view  of
the Court of Federal Claims Court decision in Pride, we believe we  continue
to have the authority and the responsibility in a case such as this, upon  a
finding of error or  injustice,  to  correct  the  record  as  necessary  to
provide full and fitting relief. Accordingly, we recommend  the  records  be
corrected as indicated below.
2




THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:
          a. On 31 May 1982, he elected Survivor Benefit Plan  (SBP)  spouse
coverage based on full retired pay.
          b. On 1 July 1985, his widow, Margaret submitted  a  claim  for  a
survivor benefit annuity.
L
Howell,
The following members of the Board considered this application in  Executive
Session on 20 November 2001, under the provisions of AFI36-2603:
Mr. David C. Van Gasbeck, Panel Chair Ms. Patricia D. Vestal, Member
Mr. Michael J. Novel, Member
All  members  voted  to  correct  the  records,  as  recommended.  following
documentary evidence was considered:
The
Exhibit A. Exhibit B. Exhibit C. Exhibit D.
DD Form 149, dated 16 Jul 01, w/atchs. Applicant's Master Personnel
Records. Letter, AFPC/DPPTR, dated 29 Aug 01. Letter, AFBCMR, dated 7 Sep
01.



                 DAVID C. VAN GASBECK
                 PANEL CHAIR
3
TOTAL P.03


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                 DEPARTMENT OF THE AIR FORCE WASHINGTON, DC
Office of the Assistant Secretary
AFBCMR 01-02058
DEC
6 2001
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 APPLICANT, be corrected to show that:
      a. On 31 May 1982, he  elected  Survivor  Benefit  Plan  (SBP)  spouse
coverage based
on full retired pay.

      b. On 1 July 1985, his widow, Margaret L. Howell,  submitted  a  claim
for a
survivor benefit annuity .
Director
Air Force Review Boards Agency

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