RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 02-03764

                 COUNSEL:  None

                 HEARING DESIRED:  No
_________________________________________________________________


APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show she is entitled to
a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She should receive 55 percent of his retirement pay.

In support of her request, she submits a personal letter,  a  copy  of
her deceased husband's certificate of death, marriage license, DD Form
214, a letter from DFAS, and a copy of the Retired Serviceman’s Family
Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP).

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member was married and elected spouse only coverage (with
Option 4)  under  the  Retired  Serviceman’s  Family  Protection  Plan
(RSFPP) for his previous wife prior to his 1 Aug 67 retirement.

The applicant and former member was married on 1  Feb  75,  more  than
seven years after he retired from the Air Force.  The deceased  member
failed to advise the finance center  of  the  change  in  his  marital
status.  There is no evidence the deceased member elected SBP coverage
during any of the three open enrollment periods, which occurred  after
his marriage to the petitioner.  Records reflect that  RSFPP  premiums
of approximately $14 per month  were  erroneously  deducted  from  the
deceased member’s retirement pay from the date his  previous  marriage
was terminated.  The former member died on 16 Mar 02.

_________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPPTR recommend that applicant’s request  be  denied  and  stated
that there is no evidence of Air Force error or injustice, or merit in
fact, nor basis in law to approve this case.  He had  to  purposefully
elect the more expensive RSFPP coverage (Option  4),  which  permitted
him to stop paying RSFPP premiums in the event his wife died, or  they
divorced.  However, we cannot determine the reason for the  decedent’s
failure to advise the finance center of the loss of his previous wife,
in as much as documentation of the change in his marital status  would
have restored the RSFPP costs to his retired pay.

Regardless of the continuation of RSFPP  premium  deductions,  it  was
unreasonable for  the  decedent  or  the  applicant  to  assume  RSFPP
coverage would have been extended to  her  following  their  marriage.
Briefing material used at the time  the  member  completed  his  RSFPP
election clearly stated that “dependents acquired after you retire are
not eligible to receive  Family  Protection  Plan  annuity  payments,”
payments would only be made “to your widow (who was your  lawful  wife
at the date of your retirement),” and the initial value of the annuity
was the amount a participant’s “widow would receive for  the  rest  of
her unmarried life.”  Furthermore,  it  was  groundless  for  them  to
assume the applicant would be entitled to 55 percent of  the  member’s
retired pay in the event of his death, or that SBP coverage would have
been automatically established on her behalf.  The RSFPP  annuity  was
not increased after the member was released from active duty,  but  it
was not reduced when a survivor attained age 62.  However, a surviving
spouse receives SBP payments at the 55 percent level only  until  they
attain age 62.  Thereafter, the amount of the SBP annuity  is  reduced
to 35 percent of the base amount if the member served on  active  duty
after 31 Dec 56.

There is no legal authority for the Air Force to pay  this  petitioner
an RSFPP annuity because the  decedent  was  no  longer  a  bona  fide
participant  and  she  was  not  a   legitimate   RSFPP   beneficiary.
Furthermore, the Air Force may not pay an SBP annuity to her  for  the
member retired before the implementation of the SBP  and  he  did  not
choose to provide SBP coverage on her behalf.

However, if the Board’s decision is to grant  relief,  the  decedent’s
record should be corrected to show  on  21  Sep  72  he  made  an  SBP
election for spouse only coverage based on full retired pay  under  PL
92-425; his previous wife lost eligibility
(date to be determined); and the applicant became the eligible  spouse
beneficiary effective 1 Feb 76.  Approval should  be  contingent  upon
the recovery of premiums the decedent should have paid if he had  made
the election at that time.

AFPC/DPPTR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on 10
Jan 03 for review and comment within 30 days.  As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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 an error or injustice.  After a thorough
review of the evidence of record and applicant’s submission,  we  are
not persuaded that her request should be granted.  The former  member
retired on 1 August 1967 and elected spouse only coverage  under  the
RSFPP for his previous wife.  However, there is no  documentation  of
the reason for the end of his first marriage.  There is  no  evidence
the former member elected SBP coverage during any of the  three  open
enrollment periods that occurred after his marriage to the applicant.
 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  that  she  has  suffered
either an error or an injustice. In view  of  the  above  and  absent
evidence to the contrary, we find no compelling  basis  to  recommend
granting the relief sought

4.    Notwithstanding the above,  sufficient  relevant  evidence  has
been presented to demonstrate the existence of an error or  injustice
warranting partial relief.  The former member and  applicant  married
on 1 February 1975, but he failed to advise the finance center of the
change in  his  marital  status.   The  records  reflect  that  RSFPP
premiums of approximately $14 per  month  were  erroneously  deducted
from the former member’s pay until his     16 March 2002 death,  even
though he had no eligible beneficiary.  Therefore, it is the  Board's
opinion that the former member should be entitled to a  total  refund
of premiums. In view of the above, we recommend that the  records  of
the deceased member be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to FORMER MEMBER be corrected  to  show  that  on           1
September 1972, he notified  the  Air  Force  Accounting  and  Finance
Center of  his  marriage  termination  and  that  his  beneficiary  is
entitled to reimbursement of  all  premiums  paid  into  the  Survivor
Benefit Plan after 1 September 1972.

_________________________________________________________________

The following members of the Board considered Docket  Number  02-03764
in Executive Session on 8 April 2003, under the provisions of AFI  36-
2603:

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

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Nov 02, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 19 Dec 02.
   Exhibit C.  Letter, SAF/MRBR, dated 10 Jan 03.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair