RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03122
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His Survivor Benefit Plan (SBP) coverage be terminated.

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APPLICANT CONTENDS THAT:

Through his member of congress, applicant states that he was not aware
that he was enrolled in the SBP program until he received a  bill  for
over $8000 and that he has been 100 percent disabled since 1999.

In support of his request, applicant provided a copy of a letter  from
the Defense Finance and Accounting Service (DFAS) in  response  to  an
inquiry from his congressman.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The Air Force stated that the applicant was married and elected  child
only SBP coverage based on full retired pay prior  to  his  12 May  83
disability retirement.  The Defense Enrollment  Eligibility  Reporting
System (DEERS) records show that he was  divorced  on  4 Jan  90,  and
remarried on 10 Apr 92.  During the open enrollment period  authorized
by PL 101-189 (1 Apr 92 – 31 Mar 93), he added his wife to  his  child
only coverage and elected  the  20  percent  Supplemental  SBP  (SSBP)
coverage.  In May 93, the applicant’s VA disability pay  exceeded  his
Air Force retired pay.  A direct remittance  account  was  established
but the costs for SBP monthly premiums were not paid and a debt  began
to accumulate.  The parties divorced on 27 Feb 96.  On 17 Nov 99,  the
applicant received a 30 percent VA disability rating,  but  was  rated
100 percent for unemployability.  The  member  was  married  again  on
20 May 00 and his youngest child lost eligibility on 30 Jun 00.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended denial.  An SBP election is valid as long as
the beneficiary remains eligible.  Public Law (PL) 96-402, 9  Oct  80,
permits members, who have been  rated  100  percent  disabled  by  the
Department  of  Veterans  Affairs  (VA)  for  five  continuous   years
immediately following retirement, or ten consecutive  years  if  rated
100  percent  after  retirement,  to  withdraw  from  SBP.   They  are
permitted to withdraw because their deaths  will  be  presumed  to  be
service-connected; therefore, the surviving spouses will  be  entitled
to monthly Dependency and Indemnity Compensation (DIC)  payments  from
the VA.  DIC reduces an SBP spouse annuity, dollar-for-dollar.   If  a
member withdraws under this provision, there is no immediate refund of
premiums; however, applicable spouse premiums paid by the  member  can
be refunded to the spouse following the member’s death.   To  withdraw
from the SBP under this provision, the eligible member must  submit  a
written request to DFAS  with  the  beneficiary’s  notarized  consent.
Withdrawal is effective the month DFAS receives the request.

SBP spouse coverage is suspended when the  spouse  loses  eligibility.
PL 99-145 allows a retiree to elect  not  to  resume  coverage  for  a
subsequently  acquired  spouse;  however,  the  new  spouse  will   be
automatically covered at the previous level on the  first  anniversary
of the marriage if the member takes no action before that date.

PL 105-85, 18 Nov 97, authorized members, who were retired  more  than
two years as of 17 May 98, a one-year window during which  they  could
arbitrarily disenroll from the SBP (17 May 98 – 16 May 99).   Retirees
had to complete the  DD  Form  2656-2,  Survivor  Benefit  Plan  (SBP)
Termination Request, and obtain the beneficiary’s notarized consent.

It is unreasonable to believe the applicant’s claim that  he  did  not
realize he had SBP following the first  anniversary  of  his  marriage
since he received bills for the SBP premiums as early as Oct  01  when
he notified DFAS of his present address.  Unless he maintains the  100
percent rating from the VA for ten continuous years, he is  ineligible
to withdraw from the Plan under PL 96-402.  Further, even  though  the
applicant submitted a termination request on 12 Mar 02, it was invalid
because it was not received during the required time limit [17 May 98-
16 May 99].  PL 105-85 contained no provision for waiving or extending
an additional  opportunity  to  terminate  participate.   Finally,  to
provide the applicant  an  additional  opportunity  to  terminate  SBP
coverage is not merited and would be inequitable to other retirees  in
similar situations.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant stated that he received a 70 percent VA  disability  rating,
not 30 percent, and the VA would  not  even  consider  unemployability
until you reached 70 percent with at least 40 percent in one area  and
have been unemployed due to your disability for a period of time.
He further states that he never received  any  bills,  statements,  or
correspondence from the DFAS Cleveland office at any time prior to Oct
01.  He knew he was not receiving retired pay, because of the law that
prohibits a servicemember from receiving concurrent pay of  retirement
and VA disability.  He, therefore, had no reason to check and  see  if
he had SBP.
Applicant’s complete response is at Exhibit D.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

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 AFBCMR Docket  Number
02-03122 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 19 Sep 02, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPPTR, dated 8 Nov 02, w/atchs.
    Exhibit C.  Letter, AFBCMR, dated 15 Nov 02.
    Exhibit D.  Letter, Applicant, dated 21 Nov 02, w/atch.




                                   DAVID C. VAN GASBECK
                                   Panel Chair