RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03119
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Applicant is the widow  of  a  former  service  member,  who  requests
corrective action that would entitle her to a  Survivor  Benefit  Plan
(SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She did not receive notification from the Air Force of  her  husband’s
election not to participate in the  SBP.   On  22  October  2001,  her
husband passed away.  Upon notifying the appropriate agencies  of  his
death, she has been informed by the  Defense  Finance  and  Accounting
Service (DFAS) that her deceased husband did not elect to  participate
in the spousal option of the SBP at the  time  of  his  retirement  in
January of 1981, at McChord AFB, WA.  She was married to the applicant
on 3 September 1960 and they remained married until  his  death.   She
did not, however, receive notification  from  the  Air  Force  of  her
deceased husband’s election not to participate in the spousal  portion
of SBP nor was she counseled by the Air Force on the effects  of  such
an election.

In support of the appeal, the applicant submits a copy of the Marriage
Certificate and  a  copy  of  the  Death  Certificate.   Her  complete
submission, with attachments, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  former  service  member  and  the  applicant  were   married   on
3 September 1960.  DFAS  records  indicate  that  the  former  service
member elected child only SBP coverage prior to his  1  February  1981
retirement.  DFAS-Cleveland Center  (DFAS-CL)  could  not  locate  the
member’s election form and there is  no  evidence  that  the  required
notice  was  or  was  not  sent  to  him.   The  youngest  child  lost
eligibility in March 1996 and the member died on 22 October 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR  states  that  the  intent  of  the   spouse   notification
requirement was to ensure spouses, upon the  sponsor’s  death,  didn’t
learn for the first time that they weren’t covered by  SBP.   In  this
case, as in all Barber cases, the  facts  are  essentially  the  same:
there is no record the required notice was sent to the  applicant  and
the applicant has provided a sworn statement that the notification was
not received.  Therefore, they recommend the  decendent’s  records  be
corrected to show on 31 January 1981 he elected spouse and  child  SBP
coverage based on full retired pay.   Approval  should  be  contingent
upon recovery of premiums the decedent would have paid had he made the
election at that time.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that she disagrees with the  recommendation  that
approval should be contingent upon recovery of premiums (approximately
$54,300.  In the decision Barber v. U.S. 676 F.2d 651,  referenced  in
the advisory and referenced in other like  cases,  the  decision  held
that the plaintiffs were  entitled  to  coverage  under  the  Survivor
Benefit Plan from the date of the applicant’s death until they were no
longer eligible.  The court further instructed that, “to  the  accrued
total benefits to which plaintiffs are presently entitled there  shall
be offset that amount actually paid to the deceased during the  period
of his retirement that would otherwise have  been  deducted  from  his
retirement pay as his contribution to the plan.”  In interpreting  the
courts instruction, it appears that the key phrases are “accrued total
benefits” and “presently entitled.”  These phrases suggest  that  from
the date of the deceased member’s death  to  the  time  the  case  was
decided, if there were any benefits due  to  plaintiffs,  that  amount
would be offset by the amount that would otherwise have been  deducted
had the member elected to join the SBP Plan; this does not imply  that
money should be deducted from future monthly annuity payments nor that
the monthly survivor annuity should be delayed.

She does not believe it was the  court’s  intention  to  penalize  the
spouse yet a second time by denying benefits until  a  certain  amount
has been paid in full.  Thus, she is requesting reconsideration of the
recommendation in part  and  she  proposes  the  following:   (1)  her
deceased husband’s records be corrected to show that he elected spouse
and child SBP coverage on  31 January  1981,  (2)  the  total  accrued
benefits (from 22 October 2001 until a final decision  by  the  Board)
shall be accepted as payment in full towards  the  amount  that  would
have been deducted had her deceased husband elected to  contribute  to
the SBP Plan on 31 January 1981,  and  (3)  monthly  survivor  annuity
payments should begin immediately.  In addition, she is  requesting  a
copy of the formula used to determine the amount that would have  been
deducted from her deceased husband’s retired pay  had  he  elected  to
participate in the SBP Plan on 31 January 1981.

Applicant's complete response, with attachment, is attached at Exhibit
E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AF/JAG states that they agree with  AFPC/DPPTR  that  the  records  be
corrected to reflect he elected spouse and child SBP  coverage.   They
also agree that benefits, accrued and future, should be offset by  the
uncollected SBP contribution totaling approximately $54,300.

AF/JAG disagrees with the applicant’s  interpretation  of  the  Barber
case.  In Barber, the  court,  in  awarding  SBP  benefits,  held  the
“accrued total benefits to which  plaintiffs  are  presently  entitled
there shall be offset that amount actually  paid  to  Sergeant  Barber
during the period of his retirement that would otherwise been deducted
from his retirement pay as his contribution to the plan.”  As  way  of
illustration, the court notes in its opinion  that  Sergeant  Barber’s
retired pay would have been  reduced  by  $24.40  per  month,  as  his
contribution to the  plan,  and  he  died  15  months  after  becoming
entitled to retired pay.  The offset against the  plaintiff’s  accrued
total benefits  would  have  been  $300.   In  applicant’s  case,  the
uncollected plan contributions to be offset are approximately $54,300.
 Whether the offset is against accrued or  future  SBP  benefits,  the
overarching principle is SBP benefits are not free and  the  cost,  in
applicant’s case, is approximately $54,300.  While  this  outcome  may
appear harsh, another perspective is the applicant, and  the  deceased
member, had the use and benefit of the uncollected  SBP  contributions
($54,300) for 20 years.

A complete copy of their evaluation is attached at Exhibit F.

________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The  applicant  states  that  she  is  in   disagreement   over   the
recommendation whereby future survivor  benefits  be  offset  by  the
uncollected SBP contributions  totaling  approximately  $53,400.   As
stated in Barber v. US, 230 Ct.Cl. 287, the deceased military  member
had died 15 months after becoming entitled  to  retired  pay.   There
are, however, other cases where the deceased military member had died
4-9 years after becoming entitled to  retired  pay  and  the  court’s
conclusion and monetary compensation were controlled  by  the  Barber
case.  “The court holds that plaintiff is entitled to coverage  under
the Survivor Benefit Plan and to appropriate survivor  benefits  from
the date of military members death until such time as plaintiff is no
longer eligible therefore.  The  court  further  holds  that  to  the
accrued total benefits to which plaintiff is presently entitled there
shall be offset that amount actually paid  to  military  member  that
would otherwise have been deducted from his  retirement  pay  as  his
contribution to the plan.”

As she mentioned in her previous letter, they  key  words  “accrued”
and “presently” can only be  interpreted  to  mean  that  the  total
benefits due from the time of her husband’s death, to  the  present,
are the  only  benefits  that  should  be  used  to  compensate  the
government.  It was, it seems, the courts way of being equitable  to
both parties.  The plaintiff would automatically be enrolled in  the
survivor benefit plan and the government would not  have  to  pay  a
large lump sum amount.  After all, the  underlying  issue  in  these
types of cases, such as hers,  is  to  insure  that  the  government
provides monetary damages when it does  not  comply  with  statutory
provisions.

Finally, in response to the statement “… another perspective  is  the
applicant, and deceased member,  had  the  use  and  benefit  of  the
uncollected SBP contributions (approximately $53,400) for 20  years,”
she would like to remind the Board  that  her  deceased  husband  had
elected child coverage  under  the  SBP  from  1981  to  1996;  thus,
contributions had been made to the SBP for 15  years  for  which  the
government has had the use and benefit of since this money was  never
distributed to her children.

In conclusion, she requests from the Board a  decision  as  follows:
(1) change her deceased husband’ records to show that he had elected
spousal  coverage  under  the  SBP  as  of  31  January  1981;   (2)
Immediately begin providing  all  entitlements  under  the  SBP,  to
include a monthly annuity; (3)  the  total  accrued  benefits  (from
22 October 2001 until a timely  decision  by  the  board)  shall  be
accepted as payment in full towards the amount that would have  been
deducted had her deceased husband elected to participate in the  SBP
on 31 January 1981.  Additionally, she is requesting, for the second
time, a copy of the formula used to determine the amount that  would
have been deducted from her deceased husband’s retired  pay  had  he
elected spousal coverage under the SBP on 31 January 1981.

A complete copy of their evaluation is attached at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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


2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  In this regard, we note that the Air
Force cannot determine whether or not the applicant  was  notified  of
her deceased husband’s election made in  1981.   Therefore,  we  agree
with the  comments  and  recommendation  of  the  Chief,  General  Law
Division and recommend the deceased member’s records be  corrected  to
show that at the time of his retirement he elected  spouse  and  child
coverage under the SBP.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice with respect  to  the  applicant’s
request  that  she  be  exempt  from  repayment  of  at   any   unpaid
contributions be recovered from any monies  due  her  be  waived.   In
order for the applicant to remain eligible for  the  SBP  annuity,  by
law, her spouse would have had to make an election at the time of  his
retirement in 1981.  We have noted the applicant’s  arguments  and  do
not find them sufficient to overcome the  detailed  assessment  by  HQ
USAF/JAG.  Therefore, in view of the above and  absent  evidence  that
she would be treated differently from others similarly situated  as  a
result of this requirement, this portion of the applicant’s request is
not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 31 January 1981  he
elected spouse and child coverage  under  the  Survivor  Benefit  Plan
(SBP) based on full retired pay.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 September 2003, under the provisions of AFI 36-
2603:

                  Mrs. Kathy L. Boockholdt, Panel Chair
                  Mr. Roscoe Hinton, Jr., Member
              Mr. Joseph A. Roj, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 Sep 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPTR, dated 29 Oct 02.
   Exhibit D.  Letter, SAF/MRBR, dated 1 Nov 02.
   Exhibit E.  Applicant's Response, dated 15 Nov 02, w/atch.
   Exhibit F.  Letter, AF/JAG, dated 8 Jan 03.
   Exhibit G.  Letter, AFBCMR, dated 14 Jan 03, w/atch.
   Exhibit H.  Applicant’s Response, dated 7 Feb 03, w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair








AFBCMR BC-2002-03119
INDEX CODE:  137.00




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show that on 31 January 1981 he
elected spouse and child coverage under the Survivor Benefit Plan
(SBP) based on full retired pay.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency