RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-00895
                       INDEX CODE:  137.00

      APPLICANT  COUNSEL:  None

      SSN        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to terminate spouse coverage under the Survivor  Benefit
Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His wife is in stage 3 of Alzheimer's disease and is being assisted by
state programs.  In order to continue to receive state assistance, her
income cannot exceed $300.00 a month.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant retired on 1 Aug 64 and did not elect SBP at that  time.
During the open enrollment period authorized by Public Law  (PL)  101-
89, the applicant elected spouse only coverage, maximum annuity,  plus
a 20 percent level of Supplemental SBP (SSBP), to be  effective  on  1
May 92.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR  states  that  an  SBP  election  cannot   be   arbitrarily
terminated as long as the beneficiary  remains  eligible.   PL  105-85
authorized service members, who were retired more than two years as of
17 May 98, a one-year window during which they  could  disenroll  from
SBP (17 May 98 - 16 May 99).  The service member had to complete a  DD
Form 2656-2, Survivor Benefit Plan (SBP) Termination Request, with the
notarized signature of the beneficiary concurring to terminate the SBP
coverage.   The  applications  from   members   whose   spouses   were
incompetent were
reviewed by the Secretary of Air Force (SAF) and, if the  request  was
legally sufficient, disenrollment was permitted.

Currently, laws  governing  SBP  provide  no  provision  to  terminate
coverage based on a beneficiary's medical  condition.   The  applicant
had the opportunity to disenroll from SBP during the period authorized
by PL 105-85.  Also, there were resources to obtain information on the
procedures to disenroll from SBP.  Information was  forwarded  to  his
address of record, where he continues to reside,  which  included  the
May 98 issue of the Afterburner, News for USAF for Retired  Personnel,
which contained information and points of contact, as well as  the  DD
Form 2656-2 to aid in disenrolling from SBP.  To provide the applicant
additional time to terminate his SBP coverage would be unfair to other
members in similar situations, therefore they  recommend  denying  the
applicant’s request.

A complete copy of the evaluation is attached at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
12 Apr 02, for review and response.  As of this date, no response  has
been received by this office.

On 22 Aug 02, the AFBCMR Staff, at the request of the Board, forwarded
a letter to the applicant requesting he provide information  regarding
if guardianship has been established for his wife and clarification if
the income requirement was regulated by state law or was it  a  policy
of an agency within the state (Exhibit D).

In support his application the applicant submitted an excerpt  of  the
Arizona Long Term Care System (ALTCS) Manual regarding eligibility and
income criteria (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 an injustice.  We took  notice  of  the  applicant's
complete submission in judging the merits of the
case.  The applicant’s son has  advised  the  Board  staff  that  his
mother was diagnosed  with  Alzheimer's  Disease  approximately  four
years ago and has been receiving assistance from the state since June
2000  after  his  father  (the  applicant)  reluctantly  applied  for
assistance.  The majority notes that the basic intent of  SBP  is  to
provide income to the surviving spouse in the event  of  the  retired
member's death.  However, in this case, it  appears  that  under  the
circumstances, the applicant's spouse will not benefit from the  SBP,
as it was intended.  In a typical bureaucratic snafu,  as  it  stands
now, the surviving spouse would receive the SBP payment; however, not
only will this payment be insufficient to pay for  the  cost  of  her
care at an assisted living  facility,  her  income  will  exceed  the
threshold allowed by Arizona and  she  will  apparently  forfeit  all
income in excess of $81.75 monthly in order for her  to  receive  the
state's  assistance  in  providing  for  her  future  care.   In  the
majority's opinion, it is patently  unjust  that  the  applicant  has
received a reduced monthly retirement check so that he could  provide
for his spouse in the event of his death and yet quite  possibly  she
will never be able to fully utilize these funds.  In consideration of
the timeline involved in this  case,  the  majority  believes  it  is
reasonable to conclude that the applicant could not have known  there
would have been a basis for him to disenroll from SBP under the terms
of Public Law 105-85 since  the  disenrollment  election  had  to  be
postmarked not later than 16 May 1999.  In view of the foregoing, the
majority believes that any doubt should be resolved in favor  of  the
applicant and the coverage under the SBP  should  be  terminated  and
this we so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 15 May 1999, under
the provisions of Public Law 105-85, he submitted a valid  request  to
terminate his spouse coverage under the Survivor Benefit Plan and  his
request was approved by competent authority.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number
02-00895 in Executive Session on 16 August 2002, 1 October 2002 and
1 November 2002, under the provisions of AFI 36-2603:

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

By majority vote, the Board recommended granting the requested relief.
 Mr. Roj voted to deny the application but he does not
desire  to  submit  a  Minority  Report.   The  following  documentary
evidence was considered:

      Exhibit A. DD Form 149, dated 22 Feb 02, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPTR, dated 1 Apr 02.
      Exhibit C. Letter, SAF/MRBR, dated 12 Apr 02.
      Exhibit D. Letter, AFBCMR, dated 22 Aug 02.
      Exhibit E. Applicant's Response, undated.









AFBCMR 02-00895
INDEX CODE:  137.00






MEMORANDUM FOR THE CHIEF OF STAFF

      Under the authority of Section 1552, Title 10, United States Code,
Air Force Instruction 36-2603, and having assured compliance with the
provisions of the above regulation, the decision of the Air Force Board
for Correction of Military Records is announced, and it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, SSN, be corrected to show that on 15 May 1999,
under the provisions of Public Law 105-85, he submitted a valid request
to terminate his spouse coverage under the Survivor Benefit Plan and his
request was approved by competent authority.




                 JOE G. LINEBERGER
                 Director
                 Air Force Review Boards Agency