RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2002-03883
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Applicant is the ex-spouse of the former service member who is
requesting corrective action to reflect that he elected spouse and
child coverage thereby allowing their daughter access to Survivor
Benefit Plan (SBP) payments.
_________________________________________________________________
APPLICANT CONTENDS THAT:
At retirement, her now deceased, ex-spouse, suffering from brain
cancer and impending blindness, did not have the mental capacity to
comprehend or make judgements regarding SBP election. She contends
that she was not aware of the rules that govern SBP and therefore
could not have effective input to the election process.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The deceased member contracted his enlistment in the Regular Air Force
on 13 January 1987. A 15 October 1990 Physical Evaluation Board found
that the member should be permanently retired at a compensable rating
of 100%. He suffered from a non-resectable grade II-II astrocytoma
and was not expected to improve. Member was medically retired on 29
November 1989 as an Airman 1st Class (E-3) after serving 1 year, 10
months and 17 days of active duty.
The deceased member elected spouse only SBP coverage based on full,
retired pay effective 30 November 1988. On 14 July 1991, a daughter
was born to the applicant and decedent. There is no evidence that the
decedent notified the finance center of his daughter’s birth or his
intention to add her to the Plan. The applicant and decedent were
divorced on 1 September 1993, and the deceased member was not required
to maintain SBP coverage on the applicant. The deceased member
neglected to inform finance officials of his divorce and,
consequently, SBP premiums continued to be withheld from his
retirement pay until his death on 3 December 2000.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommends denial. DPPTR states that the decedent did
not submit a valid request during the allotted time to do so after the
birth of a child (one year), nor did he take advantage of an open
enrollment period during 1999-2000 to make the addition. In
hindsight, DPPTR argues that the member did not survive for the
mandatory two-year period beyond the open enrollment anyway and
therefore his daughter would not have been eligible for an annuity.
DPPTR maintains that there is no evidence of error or injustice in
this case. Their advisory is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on
17 January 2003 for review and comment within 30 days. As of this
date, there has been no response 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 error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case;
however, there was no evidence presented to show that the member did
not have the mental capacity to make a reasoned decision regarding
child coverage during the one-year time period following the child’s
birth. 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 BC-
2002-03883 in Executive Session on 8 April 2003, under the provisions
of AFI 36-2603:
Mrs. 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 Oct 02, w/atchs.
Exhibit B. Decedent's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPTR, dated 9 Jan 03.
Exhibit D. Letter, SAF/MRBR, dated 17 Jan 03.
KATHY L. BOOCKHOLDT
Panel Chair
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The evidence also establishes the deceased member’s efforts to provide the applicant with all the benefits she was entitled to as the spouse of a retired service member. Microfiche records verify SBP enrollment packets and newsletters were mailed to the address the decedent provided to the finance center during the 1981-1982 and 1992-1993 open enrollment periods. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the...
On 12 Jun 73, the deceased member submitted an SBP election statement during the initial enrollment period, declining coverage. Public Law (PL) 92-425, which established SBP on 21 Sep 72, authorized an 18-month enrollment period for retired members to elect SBP coverage. After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that her late husband’s records should be corrected to show that he elected SBP coverage for her.
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He told her that her husband was making SBP payments and therefore she should have been receiving an annuity after his death. DPPTR states there is no basis in law to waive the two-year survival requirement; however, if the Board’s decision is to grant relief, the record could be corrected to show the member elected spouse only SBP coverage based on full-retired pay on 27 July 1977, prior to the first marriage anniversary. As of this date, this office has received no response (Exhibit D).
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1450(f)(1) that states in all cases, the Air Force is required to notify the former spouse of any changes in SBP election. The Air Force did not answer her letter nor did they meet the one-year time frame to notify former spouses of changed elections as required by 10 U.S.C. Neither the servicemember nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage.