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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