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AF | BCMR | CY2002 | BC-2002-00038
Original file (BC-2002-00038.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-00038

            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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