RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-00491
            INDEX CODE 137.03
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His child-only Survivor Benefit Plan (SBP) coverage be terminated upon
his retirement from the Air Force.
_________________________________________________________________

APPLICANT CONTENDS THAT:

On 23 Sep 94, he was shot in the head and was retired in the  line  of
duty.  He was retired in the  “Imminent  Death”  status,  however,  he
survived and did not hear anything about SBP until 7 Nov 01.  A letter
came in the mail that day demanding payment of  $5176.00.   He  called
Cleveland and they informed him that he was signed  up  for  SBP  upon
retirement.  He replied that he did not sign up because he  was  in  a
semi-coma for a week.  He called the Veteran Administration (VA) and a
counselor told him he did not need that.   The VA has a  form  of  the
“SBP” that he did not have to pay for.  In addition, the VA  told  him
that it would pay his wife a lot more money than the Air Force.  He is
requesting that  the  SBP  be  terminated  and  all  monies  paid  are
refunded.

In support of his appeal,  he  has  submitted  a  personal  statement,
retirement orders, Secretarial Determination of Survivor Benefit  Plan
Election letter, dated 1 December 1994, DD Form 2656 and a  Disability
Retirement message dated 26 September 1994.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
22 May 1986 for a  term  of  4  years.   On  23  September  1994,  the
applicant suffered a gunshot wound to the head.  On that same  day,  a
board of Air Force medical officers determined that the applicant  was
incompetent for pay and  records  and  was  placed  on  the  Temporary
Disability Retired List  (TDRL).   The  Secretary  of  the  Air  Force
elected, on behalf of the applicant, to provide an SBP annuity for his
children based on full-retired pay effective 22  September  1994.   He
served 7 years, 6 months and 21 days active  service  for  retirement.
On 14 April 1996, he  was  released  from  the  TDRL  and  permanently
retired from the Air Force with a 100% disability retirement.

The remaining 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 at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR recommended denial.  The member was incompetent for pay and
records prior to 23 September 1994, the date he was place on the TDRL.
 His wife was designated as the next-of-kin, she requested an election
for child only coverage, maximum annuity, and the SAF authorized  that
election to be made on the member’s behalf.  DFAS-CL established  full
spouse SBP  coverage  pending  receipt  of  the  SAF’s  approval,  but
subsequently  failed  to  properly  convert  that  coverage.   Finance
records indicate that the VA awarded disability  compensation  to  the
member, the award first exceeded his retired pay  in  September  1995,
and a direct remittance account was established.  The member was found
competent for  pay  and  records  on  20  January  1995.   The  member
submitted SBP spouse premiums directly to DFAS-CL until February  1996
when he discontinued payments and a debt of approximately $5,458 began
to  accrue.   The  member’s  child  only  SBP  coverage  was  properly
established by the  finance  center  in  February  2002,  the  monthly
premium was adjusted from $65 to $14  retroactive  to  his  retirement
date, and adjustment to the debt is being processed.

The member's claim that he did not make the election is without merit.
 The SAF made the election on his behalf since he was not competent to
make the election himself.  However, the member could have voided  the
election after he was found competent in 1995, but he failed to do  so
within the time permitted and offers no explanation for this delay.

The AFPC/DPPTR evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  stated  that  the
Air Force doctors did not think he  was  going  to  live  through  the
surgery.  His wife does not remember signing anything  concerning  SBP
coverage.  He was released from the Minot hospital on 18 October 1994,
and flown to Nashville to the acute rehab hospital.  He  was  released
from there in January of 1995.  He was not  receiving  his  retirement
pay (neither was his wife).  Shortly  after  he  was  evaluated  by  a
competence board on 15 January 1995, he went  to  a  sub  acute  rehab
ranch in Texas to learn how to take care of himself.  He stayed  there
until December 1995 and moved to Nashville TN in  January  1996.   His
parents were paying his bills while he was in the hospital.  He  never
knew he was signed up for SBP, and did not receive a bill for the  SBP
until November 2001. He then got in touch with DFAS-CL.

He never got the article that DFAS-CL referred  to  in  their  letter.
Meanwhile, he moved twice in 1996, and has been living at his  current
address since June 1996.  He never  received  anything  from  the  Air
Force or DFAS except when he was taken off the TDRL and placed on  the
permanent disable list.  He also has a  beneficiary’s  consent  letter
requesting cancellation of SBP coverage included.

The applicant’s response is attached at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of an error  or  injustice  warranting  partial  relief.
After reviewing the evidence of record, the Board is  of  the  opinion
that the decision made by the Secretary of the Air Force on behalf  of
the applicant during the Imminent Death process  was  the  appropriate
decision to be made under the circumstances and in the  best  interest
of the applicant.  However, the Board agrees with the applicant,  that
when he was found competent in 1995, he was actually competent  enough
to make the decision to elect "no" coverage under the SBP.  Therefore,
the Board recommends his records be corrected to the extent  indicated
below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 1  February  1995,
he elected to decline coverage under the Survivor Benefit Plan.

_________________________________________________________________







The following members of the Board considered Docket  Number  02-00491
in Executive Session on 16 August 2002, under the provisions of AFI 36-
2603:

            Mrs. Barbara A. Westgate, Chair
            Mr. Joseph A. Roj, Member
            Mr. Roscoe Hinton, Jr., Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 2 Jan 02, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPTR, dated 25 Mar 02.
      Exhibit D. Letter, SAF/MRBR, dated 5 Apr 02.
      Exhibit E. Applicant's Response, dated 17 Apr 02, w/atch.




            BARBARA A. WESTGATE
            Chair


AFBCMR 02-00491




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 on  1  February
1995, he elected to decline coverage under the Survisor Benefit Plan.








            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency