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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
_________________________________________________________________ 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...
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