RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-00038
INDEX CODE 137.01
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former husband’s records be corrected to show she is entitled to a
Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
(1) Surviving spouse never notified of SBP open period; (2) Retired
member never notified spouse of open SBP period; (3) DOD and DFAS
never ensured spouse or retired member of SBP rights while member was
alive; (4) DOD and DFAS failed in their fiduciary duty to protect
spouse prior to and after death of member; and (5) DOD and DFAS failed
to provide SBP information directly to spouse.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The deceased member and the applicant were married on 17 November
1972. The member retired on 1 April 1971.
The Retired Serviceman’s Family Protection Plan (RSFPP) was in effect
until the implementation of the SBP, but there was no option to
transfer spouse RSFPP coverage to a spouse acquired after retirement.
Public Law (PL) 92-425, which established the SBP on 21 September
1972, authorized an 18-month enrollment period for retired members to
elect SBP coverage. PL 97-35 later authorized a subsequent open
enrollment period (1 October 1981 – 30 September 1982). During each
enrollment period, members were advised by direct mail of their
eligibility to make an election. The enrollment packets, as well as
the Afterburner, USAF News For Retired Personnel, published during
those timeframes, were sent to the correspondence address members had
provided the finance center and contained points of contact for
retirees to use to gain additional information. There were no
provisions in the laws during either of these open enrollment periods
requiring the Services to notify a spouse if the member did not
enroll. Federal Appeals Court decision—Appeal 85-927, Helen Passaro
v. U.S.—held that the notice provision of the SBP does not apply to a
service member already entitled to retired or retainer pay on 21
September 1972.
There is no evidence the member returned an election form during
either SBP open enrollment period. He died on 21 May 1991.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states that since the parties were married almost two
months after the beginning of the initial SBP open enrollment period,
the member could have elected coverage on the applicant’s behalf
anytime during the next sixteen months, but did not. He could have
also elected coverage on her behalf during the 81-82 open enrollment,
but failed to do so. The applicant’s claim that she was never
notified of the enrollment period is without merit since the law does
not require such notified. Furthermore, she offers no explanation for
delaying over ten years since the member’s death in seeking
correction. The SBP is similar to a commercial insurance program in
that it requires the member to enroll and pay associated premiums in
order to provide an annuity to survivors. It would be inequitable to
those members, who chose to participate when eligible and subsequently
received reduced retired pay, and to other widows, whose sponsors
chose not to participate, to provide entitlement to this widow on the
basis of the evidence presented. Therefore, they recommend denial of
applicant's request.
A complete copy of the evaluation is attached at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR STAFF EVALUATION:
On 1 February 2002, a complete copy of the Air Force evaluation was
forwarded to the applicant for review and response within 30 days. 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. Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. We took notice of the
applicant's complete submission 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 the conclusion that the
applicant has not been the victim of an error or injustice.
Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in this
application.
_________________________________________________________________
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 23 April 2002, under the provisions of AFI 36-
2603:
Mr. David C. Van Gasbeck, Panel Chair
Ms. Patricia D. Vestal, Member
Mr. Roscoe Hinton, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Dec 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 29 Jan 02.
Exhibit D. Letter, AFBCMR, dated 1 Feb 02.
DAVID C. VAN GASBECK
Panel Chair
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