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AF | BCMR | CY2002 | 0101841
Original file (0101841.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01841
                       INDEX CODE:  137.00

      APPLICANT        COUNSEL:  NONE

      SSN        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late-husband's records be corrected to entitle her 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  are  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.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR states that Public Law (PL)  99-145,  8  Nov  85,  required
written concurrence of the spouse if the  retiree  elected  less  than
full spouse SBP coverage.  If the spouse nonconcurs in  the  election,
coverage will be established on the spouse's behalf  by  operation  of
law.

DPPTR neither confirms nor denies the applicant's contention that  she
was miscounseled.  However, it is noted that it is the  responsibility
of the retiring service member to elect  the  best  coverage  for  his
family; and that the spouse has the right to concur  or  nonconcur  in
the service  member's  decision  in  electing  SBP.   The  applicant’s
signature on the form concurring with the election certifies  she  had
received information which explained the  options  available  and  the
effects of those options.

The SBP counselors normally complete the necessary forms with as  much
data as available, but it is the service  member's  responsibility  to
ensure the information is valid and current.  It  is  unfortunate  the
applicant's deceased son's information was on the form  and  the  form
was not destroyed as she allegedly requested; however, this  does  not
invalidate the service member's election.

Since it has been more than  six  years  since  the  service  member's
death, the applicant can not be  paid  an  SBP  annuity  even  if  the
service member's records were corrected to reflect he elected coverage
prior to his retirement.  The Comptroller General decisions (B-243146,
B-243147, and B-243148, 21 May 92)  upheld  the  claim  on  which  the
Barring Act  has  expired  may  not  be  resurrected.   The   six-year
limitation  on  this case  expired on 2 Mar 99.  DPPTR, based  on  the
evidence provided, recommends the request be denied.

A complete copy of the evaluation is attached at Exhibit B

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 17 Aug 01, for review and response.

On 25 Sep 01, the applicant requested that  her  case  be  temporarily
withdrawn to  aid  in  gathering  documentation  to  substantiate  her
request.

On 25 Oct 01, the applicant requested her application  be  resubmitted
for  consideration  for  correction  of  her  late-husband's  military
records.  She submitted  with  her  request  a  letter  from  Ms.  J.,
Casualty Officer and Col B., her supervisor (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, to include the supporting  statements
from her supervisor and the Casualty Assistance  Officer,  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 sustained her burden  of
establishing that she has been the victim of an error or an injustice.
 While we can sympathize with the applicant’s loss of her son and  the
resulting anguish she was suffering at the time she completed the  SBP
notification and concurrence form, AF Form 1267, we find  insufficient
evidence to conclude that she was unaware of the implications  of  her
signature on the form.   Therefore,  in  the  absence  of  substantive
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought.

_________________________________________________________________

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 November 20, 2001, under the provisions of AFI 36-
2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Ms. Patricia D. Vestal, Member
                 Mr. Michael J. Novel, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 6 Apr 01, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 6 Aug 01 w/atchs.
      Exhibit C. Letter, SAF/MIBR, dated 17 Aug 01.
      Exhibit D. Letter, Applicant, dated 25 Sep 01.
      Exhibit E. Applicant’s Response, dated 25 Oct 01 w/atchs.




                             DAVID C. VAN GASBECK
                             Panel Chair

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