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AF | BCMR | CY2002 | BC-2002-03497
Original file (BC-2002-03497.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 02-03497
                 INDEX CODE:       137.01
                 COUNSEL:  None

                 HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show that he elected to
participate in the Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She did not receive notification of her husband’s SBP election when he
retired.  The applicant contends she is finding it difficult  to  live
on social security disability and believes that she should be entitled
to SBP after spending thirty-three (33) years with the former member.

In support of  her  request,  applicant  provided  a  notarized  sworn
statement that she did not receive notification of  his  SBP  election
when he retired; a copy of her husband’s AF Form 694, Data for Payment
of Retired Air Force Personnel, a copy of his
DD 214, Marriage Certificate, and her late  husband's  Certificate  of
Death.  Applicant's  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Documents provided by the applicant establish that she and the  member
were married on 6  November  1965.   Defense  Finance  and  Accounting
Service (DFAS) records indicate that the member declined SBP  coverage
prior to his 1 September 1985 retirement.  The  applicant  provided  a
copy of the member’s election form completed  on  20  August  1985  at
Nellis AFB, NV.  The applicant’s signature, also dated 20 August  1985
is contained on the reverse of the form.  The former member died on 17
July 1998.

________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR reviewed applicant’s request and recommends denial.  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.  In these cases, there were no  records  that  the  required
notice was given to the spouse.  This applicant did not claim, nor  is
there any indication her signature was forged.   Furthermore,  finance
center  microfiche  records  created  at  the  time  of  the  member’s
retirement reflect she signed the AF Form 694,  Data  for  Payment  of
Retired Air Force Personnel.  Nevertheless, the applicant has provided
a sworn statement that the required notice was never received.   While
it is unfortunate the applicant  is  suffering  from  serious  medical
conditions, she does not meet the criteria as  a  Barber  widow.   The
record shows that the member submitted a valid election to decline SBP
coverage and his spouse was  properly  notified  of  the  options  and
effects of the plan.  The DPPTR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the advisory and states that she never received
counseling on the SBP program from the Personal Affairs  office.   She
states that her husband may have completed the form on base, that  she
has never discussed not receiving SBP benefits with  anyone,  and  was
not informed on what she was signing.  The applicant also states  that
she was told by  her  husband  to  sign  the  form.   The  applicant’s
complete submission is at attachment D.
_________________________________________________________________

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.  After a thorough review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that the deceased member’s records  should  be  altered  so  that  his
surviving  spouse  would  be  eligible  to  receive  a  SBP   annuity.
Applicant’s contentions are duly noted; however, we do not find  these
assertions, in and by themselves, sufficiently persuasive to  override
the rationale provided by the Air Force.  We therefore agree with  the
recommendations of the Air Force and adopt the rationale expressed  as
the basis for our decision that the applicant has  failed  to  sustain
her burden of having suffered either an error  or  an  injustice.   In
view of the above and absent persuasive evidence to the  contrary,  we
find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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 Docket  Number  02-03497
in Executive Session on 21 January 2003 under the provisions of AFI 36-
2603:

                  Mr. David C. VanGasbeck, Panel Chair
                  Ms. Patricia D. Vestal, Member
                  Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 Nov 02, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 27 Nov 02.
   Exhibit C.  Letter, SAF/MRBR, dated 10 May 02.
   Exhibit D.  Letter, Applicant’s Response, dated 19 Dec 02.




                                   DAVID C. VANGASBECK
                                   Panel Chair

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