RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00408
INDEX CODE: 137.01
COUNSEL: None
HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased ex-husband’s records be corrected to show that he elected
to participate in the Survivor Benefit Plan (SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her ex-husband told her he elected SBP at the time of his 1972
retirement and he agreed to continue coverage on her behalf in their
divorce.
In support of her request, applicant provided a notarized copy of a
Judgment of Dissolution of Marriage, and her late husband’s
Certificate of Death.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The former member and the applicant were married on 6 January 1951.
The member did not enroll in the Retired Serviceman’s Family Plan
(RSFPP) prior to his 1 September 1972 retirement and did not elect SBP
coverage on the applicant’s behalf during the three open enrollment
periods. They divorced on 5 April 1993 and the divorce decree ordered
that the member “obtain and/or maintain” the SBP on behalf of the
applicant. The former member remarried on 4 November 1995 and died on
11 October 2002.
________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommends denial. The former member had three
opportunities to elect SBP coverage for the applicant while they were
married, but failed to do so. If he had elected SBP coverage for her,
he would have been eligible to change to former spouse coverage within
the first year following their divorce. It would be inequitable to
those members who chose to participate when eligible and subsequently
received reduced retired pay, and to other former spouses whose
sponsors chose not to participate, to provide entitlement to the
applicant on the basis of the evidence presented. Further, courts may
not require persons to take action prohibited by Federal stature.
The DPPTR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant responded to the advisory and states that she and her ex-
husband signed forms agreeing to participate in the RSFPP, prior to
his retirement from the Air Force and that this entitlement was part
of their divorce settlement. She also states that she was not
informed that she would have to check to make sure the RSFPP was in
effect.
The applicant’s complete submission, with attachments, is at Exhibit
D.
_________________________________________________________________
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. After a thorough review of the
evidence of record and applicant’s submission, we are not persuaded
that the deceased member’s records should be altered so that his
former spouse would be eligible to receive a SBP annuity. Applicant’s
contentions are duly noted; however, we do not find these assertions,
in and by themselves, sufficiently persuasive to override the
rationale provided by the Air Force. We therefore agree with the
recommendation of the Air Force and adopt the rationale expressed as
the basis for our decision that the applicant has failed to sustain
her burden of having suffered either an error or an injustice. In
view of the above and absent persuasive evidence to the contrary, we
find no compelling basis to recommend granting the relief sought.
_________________________________________________________________
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 Docket Number BC-2003-
00408 in Executive Session on 26 June 2003 under the provisions of AFI
36-2603:
Mr. Joseph A. Roj, Panel Chair
Mr. William H. Anderson, Member
Mr. Roscoe Hinton, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 30 Jan 03, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPTR, dated 3 Mar 03.
Exhibit C. Letter, SAF/MRBR, dated 7 Mar 03.
Exhibit D. Letter, Applicant, dated 31 Mar 03, w/atchs.
JOSEPH A. ROJ
Panel Chair
AF | BCMR | CY2003 | BC-2002-03764
_________________________________________________________________ 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. 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...
There were no provisions in the law at that time to notify spouses if the servicemember did not elect coverage. There is no evidence that the servicemember elected SBP during any of the authorized open enrollments. Exhibit C. Letter, SAF/MRBR, dated 26 Apr 02.
The deceased member did not enroll in the RSFPP prior to his retirement on 1 June 1963 and did not elect coverage during the initial SBP enrollment. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR recommended denial and stated that there is neither evidence of error or injustice nor any basis in law to grant relief in this case. However, if the decision of the Board is to grant relief, the decedent's record should be corrected to show that...
AF | BCMR | CY2002 | BC-2002-01319
The deceased member did not enroll in the RSFPP prior to his retirement on 1 June 1963 and did not elect coverage during the initial SBP enrollment. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR recommended denial and stated that there is neither evidence of error or injustice nor any basis in law to grant relief in this case. However, if the decision of the Board is to grant relief, the decedent's record should be corrected to show that...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.
_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR reviewed the application and states in reviewing the service member's records there is no evidence that he attempted to terminate the applicant's SBP following their divorce; nor is there any evidence to indicate that he requested cessation of costs when the law permitted SBP premiums to cease after a spouse beneficiary loses eligibility, therefore, they cannot speculate regarding...
AF | BCMR | CY2004 | BC-2003-00708
In support of her request, applicant submitted a copy of the former service member’s Death Certificate; a copy of their divorce decree; and copies of the former service member’s DD Form 214 (Armed Forces of the United States for Report of Transfer or Discharge), retirement order, dated 19 Feb 70, and documents associated with his retirement for disability. _________________________________________________________________ AIR STAFF EVALUATION: HQ AFPC/DPPTR reviewed this application and...
AF | BCMR | CY2002 | BC-2002-03521
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-03521 INDEX CODE: 137.00 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. They state that Public Law (PL) 98-525 permitted former spouses to submit a request to deem an SBP election change...
AF | BCMR | CY2003 | BC-2003-00319
_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR states the applicant submitted a notarized letter alleging the signature on the copy of an AF Form 1267, Survivor Benefit Plan (SBP) Notification and Concurrence, is not her signature and that she did sign an SBP election form for annuity for 55 percent of the servicemember’s retired pay. If the servicemember had elected full spouse coverage, the applicant’s signature would not have been...
AF | BCMR | CY2004 | BC-2003-03065
He was briefed that SBP costs would be 50% of his retirement pay, which they agonized over before declining SBP coverage. If they were correctly informed during their initial briefing, they would have elected to participate in the program and she would have never signed the form declining coverage. Further, there is no record the member submitted an election under PL 105-261.