RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01581
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her former husband’s records be corrected to waive the 24-month open
enrollment survival requirement in order for her to become entitled to
a Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her husband was paying SBP premiums at the time of his death and only
needed a few months to finish the waiting period.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The deceased member and the applicant were married on 9 October 1971.
The member retired on 1 January 1971. The member did not elect SBP
coverage during the initial enrollment period (72-74) or a subsequent
open season (81-82). However, he submitted an election for his wife
and stepson under the SBP based on full retired pay during the open
enrollment authorized by PL 101-189, The effective date of the
election was 1 July 1992; however, the election was voided by the
member’s 21 January 1994 death. The descendent would have had to live
two full years following the effective date of the election, or until
30 June 1994, in order for the applicant to receive an SBP annuity.
Premiums deducted prior to his death were refunded to the petitioner.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPTR states that it is unfortunate that the member did not
fulfill the survival requirement for the election he made; however, he
had two previous opportunities to elect coverage for the applicant and
her child under Public Laws 92-425 and 98-94, but failed to do so.
Furthermore, the applicant offers no explanation for delaying over
eight years since the member’s death in seeking correction. There are
no provisions in law to waive the two-year survival clause required by
PL 101-189. It would be contrary to the letter and intent of the law,
as well as inequitable to other survivors similarly situated, to
approve the applicant’s request. Therefore, they recommend denial of
applicant’s request.
A complete copy of the evaluation is attached at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The spouse of the deceased member submitted letters asking that the
waiting period be waived. She states that her husband was paying the
SBP plan at the time he died and was short a few months for this
plan’s waiting period at the time of his death.
Copy of letters are 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 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 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.
4. The applicant's case is adequately documented and it has not
been shown that a personal appearance with or without counsel will
materially add to our understanding of the issue(s) involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of 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 16 August 2002, under the provisions of AFI 36-
2603:
Mr. Roscoe Hinton, Jr., Acting Panel Chair
Mr. Joseph A. Roj, Member
Mr. Roscoe Hinton, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 May 02, w/atchs.
Exhibit B. Deceased Member's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPTR, dated 6 Jun 02.
Exhibit D. Letter, AFBCMR, dated 14 Jun 02.
Exhibit E. Applicant’s Letters, dated 20 Jun 02, w/atch.
ROSCOE HINTON, JR.
Acting Panel Chair
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