RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01308
INDEX CODE: 132.01
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to receive her deceased husband's Survivor Benefit Plan
(SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was not aware that she was not entitled to any of her deceased
husband's benefits.
In support of her request applicant provided documents associated with her
request for SBP annuity and Department of Veterans Affairs (DVA) benefits,
a Certificate of Death, her Marriage Certificate, a copy of her military
dependent identification card; a DD Form 214, Certificate of Release or
discharge from Active Duty; and, an AF Form 1411, Extension or Cancellation
of Extensions of Enlistment in the Regular Air Force/Air Force Reserve.
Her complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted from the
deceased member's military records, are contained in the letter prepared by
the appropriate office of the Air Force.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR reviewed applicant's request and recommends the case be returned
without action. DPPTR states that she and her husband were married on 6
Aug 66. Defense Finance and Accounting Service (DFAS) records reflect that
he declined SBP coverage prior to his 1 Nov 82 retirement. His election
form could not be located by DFAS-Cleveland Center (DFAS-CL) and there is
no evidence that the required notice was or was not sent to the applicant.
The member died on 31 Dec 01.
The U.S. Court of Claims has consistently ruled that widows who are not
given notice of their sponsor's election are entitled to full SBP coverage.
On 22 Apr 02, DPPTR sent a letter to the applicant requesting that she
provide a sworn, notarized statement in which she attested that she did not
receive notification that her husband had declined SBP coverage at the time
of his retirement and that she provide a statement acknowledging and
understanding that, if her husband's records are changed, the unpaid
contributions (approximately $27,660) will be collected from any annuity
payment she would be entitled to receive. She has not provided either
statement.
If she were to provide the required documents, DPPTR recommends her records
be corrected to show that on 31 Oct 82 he elected spouse SBP coverage based
on full retired pay, contingent upon recovery of all premiums. The DPPTR
evaluation, with attachment, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant states that at the time of her husband's retirement she was not
notified that she would not be provided with any spousal benefit coverage.
She states that she understands that all unpaid provisions will be deducted
from the annuity payments.
In support of her request she provided a personal statement and a statement
from her daughter. Her complete submission, with attachment, is at Exhibit
E.
_________________________________________________________________
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 error or injustice. After thoroughly reviewing the
circumstances of this case, it is our opinion that favorable consideration
of the applicant's request is warranted. We are aware of United States
Court of Federal Claims rulings in which cases where surviving spouses who
are not given proper notice of their spouse's declination of SBP coverage
are entitled to full SBP coverage. We note that the Air Force has
indicated that there is no record the applicant was provided with the
required notification. Since there is no evidence the applicant was
properly advised of her spouse’s decision not to elect coverage, as
required by the applicable statute, there is no dispute concerning her
entitlement to survivor benefits under the criteria set forth in Barber v.
United States, 676 F.2d 651 (Ct. Cl. 1982). The Air Force has requested
that the applicant provide a sworn, notarized statement attesting that she
did not receive notification of her husband's election to decline SBP
coverage and understanding that the unpaid contributions will be collected
from her annuity payments. The applicant has provided a notarized
statement as requested and accordingly, we recommend that her husband's
service record be corrected as set forth below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to the FORMER MEMBER be corrected to show that on 31 Oct 82, he elected
spouse-only coverage under the Survivor Benefit Plan, based on full retired
pay.
_________________________________________________________________
The following members of the Board considered Docket Number 02-01308 in
Executive Session on 16 Aug 02, 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:
All Exhibits should be listed here
Exhibit A. DD Form 149, not dated, w/atchs.
Exhibit B. Deceased Member's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 24 May 02.
Exhibit D. Letter, SAF/MRBR, dated 31 May 02.
Exhibit E. Letter, Applicant, dated 27 Jun 02.
BARBARA A. WESTGATE
Chair
AFBCMR 02-01308
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 31 October 1982, he elected spouse coverage
under the Survivor Benefit Plan, based on full retired pay.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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