RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01563
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
___________________________________________________________________
APPLICANT REQUESTS THAT:
Her late husband's records be corrected so that she may be eligible
for a Survivor Benefit Plan (SBP) annuity.
___________________________________________________________________
APPLICANT CONTENDS THAT:
She was born and raised in Thailand and is now 60 years of age.
She and the decedent were married for over 24 years. Due to
English being her second language, she fully depended and trusted
her deceased husband to handle all decision making and financial
matters.
At the time of the decedent’s retirement, the counselor did not
explain Survivor Benefit entitlements to her, and she was under the
impression that she had to sign the forms in order for her deceased
husband to retire.
In support of her appeal, applicant submitted a personal statement
and a copy of the medical examiner’s report.
Applicant’s complete submission is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted from
the former member’s military records, are contained in the letter
prepared by the appropriate office of the Air Force at Exhibit C.
___________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommended denial. They stated that Public Law (PL)
99-145 established the requirement that a spouse’s written
concurrence be obtained if a member elects less than full spouse
SBP coverage. If the spouse does not concur in the election,
coverage will be established on the spouse’s behalf by operation of
law. When a member declines SBP coverage for an eligible spouse,
coverage cannot be established in the future except during an open
enrollment period.
Even though the applicant and the decedent were married at the time
of his retirement (1 Apr 91), records indicate that the applicant’s
valid concurrence in the decedent’s SBP election was obtained prior
to his retirement. Subsequently, the decedent was eligible to
provide coverage for the applicant during two SBP open enrollment
periods authorized by Public Laws (PLs) 101-189 and 105-126 (1 Apr
92 – 31 Mar 93 and 1 Mar 99 – 29 Feb 00, respectively). During
each enrollment period, members were advised by direct mail of
their eligibility to make an election. There is no record he
submitted an election under either PL 101-189 or 105-261. The
decedent died on 6 Apr 02.
While it cannot be confirmed or denied that the applicant was
inadequately counseled, it is the retiring member’s responsibility
to elect the coverage that suits his family and the spouse’s right
to concur or non-concur in that election. The applicant signed the
form concurring in the decedent’s election, which, in fact,
certified that she had received information that explained the
options available, and the effects of those options. The applicant
could have non-concurred in the election, but she did not.
The decedent’s records reflect the SBP open enrollment issue of the
Afterburner was mailed to the address the decedent had provided to
the finance center when he retired, the address at which he resided
until his death and where the applicant continues to reside. DPPTR
concludes that there is no error or injustice in this case.
A complete copy of the evaluation is at Exhibit B.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 19 Jul 02 for review and comment within 30 days. As of this
date, no response has been received by this office (Exhibit C).
___________________________________________________________________
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 office of primary responsibility and adopt their
rationale as the basis for our 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 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 21 January 2003, 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 30 Apr 02, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 28 Jun 02.
Exhibit C. Letter, SAF/MRBR, dated 19 Jul 02.
DAVID C. VAN GASBECK
Panel Chair
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