RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00654


      COUNSEL:  NONE


  464-96-5826    HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected  to  show  that  he  elected  spouse
coverage based on full retired pay under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Prior to his retirement, her husband intended to  change  his  SBP  election
coverage to spouse only coverage based on full  retired  pay;  however,  the
Air Force has failed to honor his last wish.

Her husband was advised of the procedures to change his SBP  election  prior
to his retirement; however, due to  an  emergency  tracheotomy  on  the  day
prior to their appointment with a casualty affairs  representative,  he  was
unable to execute an SBP election on the day of their appointment.  In  view
of this, at his request she obtained a full power of attorney  and  executed
a new SBP election form.

The Air Force did not properly take care of her husband’s medical  needs  by
denying his request for a medical appointment for  medical  treatment  after
the Department of Veterans Affairs (DVA) advised him of  an  abnormal  blood
test, recommending a follow-up appointment with his primary  physician.   He
contacted his primary physician at the Randolph AFB clinic and  was  advised
that since he was on terminal leave and preparing to accept a  civilian  job
in Spain, he should wait until he got to Spain  for  the  follow-up.   Three
weeks  later,  he  arrived  in  Spain,  was  diagnosed  with   cancer,   and
immediately medically evacuated to Bethesda  Naval  Hospital,  whereupon  he
was extended on active duty due to the severity  of  his  illness.   He  was
ultimately medically retired and passed away shortly thereafter.

In support of her  appeal,  the  applicant  submits  a  statement  from  the
Military Personnel Flight (MPF) Commander,  a  special  power  of  attorney,
general power of attorney, the  member’s  death  certificate,  and  extracts
from his military records.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant and the member were married on 15 June 1974.

On 14 March 2002, the member was briefed on the SBP and elected spouse  only
coverage based on a reduced amount ($2,100).  The applicant did  not  attend
the briefing; however, on 27 March 2002, she concurred with his election.

The member had an approved retirement date of 1 July 2002;  however,  on  25
June 2002, his retirement was rescinded and he was placed on  medical  hold.
On that same date, he executed a special power of  attorney  and  a  general
power of attorney, appointing the applicant as his Attorney-in-fact.

The applicant was  admitted  to  the  National  Cancer  Institute  (NCI)  on
19 July 2002 and underwent a tracheotomy on 4 September 2002.

On 5 September 2002, while receiving treatment at  the  NCI,  the  applicant
and the member were scheduled for a briefing  with  representatives  of  his
MPF.

Based on the diagnosis of cancer,  the  member  was  processed  through  the
disability  evaluation  system,  and  placed  on  the  Temporary  Disability
Retired List (TDRL) on 7 September 2002, with a disability rating of 100%.

The member executed another general power of attorney  on  11 October  2002,
appointing the applicant as his Attorney-in-fact.

The member died on 3 November 2002.

The applicant is currently receiving an  SBP  annuity  of  $1,171.   If  the
member’s election had been based on full retired pay, she would  receive  an
SBP annuity of $1,842.

A retiring member is required to make an SBP  election  prior  to  retiring.
Public Law 99-145  (PL  99-145)  requires  a  spouse’s  concurrence  in  any
election for less than the maximum spouse coverage.

_________________________________________________________________






AIR FORCE EVALUATION:

AFPC/DPPTR, recommends the application be denied and states, in  part,  that
the disability operations branch notifies a member’s  immediate  next-of-kin
(NOK) in order to act on the member’s behalf,  if  the  retiring  member  is
determined to be  incompetent  for  pay  and  records.   However,  only  the
Secretary of the Air Force (SAF) can make an SBP election  in  behalf  of  a
member determined to be incompetent.  While the NOK  may  provide  input  to
the Secretary pertaining to SBP,  based  on  that  closely-related  person’s
understanding of the decision the retiring member would make if able to  act
on their own.  A power-of-attorney does not permit an individual to make  an
SBP election on a member’s behalf.  The member made  no  attempt  to  change
his 14 March 2002 election during the five months prior  to  his  disability
retirement.  The member was properly briefed by the SBP  counselor  and  had
ample opportunity to elect the coverage he  desired.   Although  the  member
became very ill after being admitted to the  NCI,  he  signed  the  AF  Form
1180, Action on Physical Evaluation Board  (PEB)  Findings  and  Recommended
Disposition on 5 September 2002.  There is no indication he was  incompetent
for pay and records at that time.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of the applicant’s appeal, the MPF Commander  states,  in
part, that Air Force members counseled  the  applicant  that  her  power-of-
attorney allowed her to change her husband’s SBP election.   Based  on  this
erroneous information, no further efforts were made to obtain  the  member’s
signature.  The Air Force members that counseled her obtained the  erroneous
information  from  the  Casualty  Assistance   Representative   (CAR)   that
indicated a power-of-attorney was adequate.  Had they known otherwise,  they
would have taken action to obtain the member’s signature on a  new  election
prior to his passing.  The applicant acted in good faith when  updating  her
husband’s election and was not aware she was not able to do so.

The MPF Commander’s complete response is at Exhibit E.

_________________________________________________________________









ADDITIONAL AIR FORCE EVALUATION:

AF/JAA, states, in part, that while a power-of-attorney cannot  be  used  to
make an SBP election or to provide a spouse’s  concurrence,  the  Board  may
correct the member’s record to  reflect  that  he  elected  spouse  coverage
based of full  retired  pay  should  it  determine  an  error  or  injustice
occurred.  This prohibition is based on Comptroller General  decisions  that
an SBP election is personal to the service member.  There is  no  indication
the member was mentally incompetent.  To the contrary, there is evidence  he
was lucid, as indicated by his signature on three documents on the  date  of
his scheduled  appointment  (5  September  2002).   In  addition,  there  is
evidence that AFPC/DPPD advised that the member had to personally  sign  the
required documents and that a power-of-attorney was ineffective  unless  the
member had been declared either incompetent or comatose.  However, there  is
an indication the member intended to change his spousal  coverage  based  on
his scheduled appointment with the MPF Commander.  AF/JAA  believes  further
statements  should  be  obtained  regarding  the  member’s  intent  or   the
circumstances leading up to the scheduled appointment on 5 September 2002.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Prior to his retirement, her husband spoke with an  MPF  representative  and
discussed setting up an appointment to change his  SBP  election  to  spouse
coverage based on the maximum amount  since  he  knew  he  was  not  getting
better.  Her husband was not mentally incompetent but he was under  sedation
at the time of their scheduled appointment  due  to  an  unexpected  setback
requiring an emergency tracheotomy.   She  contacted  the  Casualty  Affairs
Representative (CAR) that morning to let him know that he was not  going  to
be able to sign the form and was told that she could sign the  form  if  she
had a power-of-attorney.  She trusted the CAR because it  is  their  job  to
provide the correct information and there was no way she had  time  to  read
regulations when her husband was lying in a  hospital  bed.   She  does  not
understand how the error was not corrected prior to his passing  away.   She
was never even notified of the error until she  began  questioning  why  she
was not getting the maximum SBP annuity.

Applicant’s complete response is 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 respect, a majority of  the  Board
notes that in preparation for his approved retirement date of 1  July  2002,
the member elected spouse only coverage under the SBP  based  on  a  reduced
amount.  However, after being diagnosed with  cancer,  his  retirement  date
was rescinded and he was  placed  on  medical  hold.   He  was  subsequently
placed on the TDRL  with  a  100%  rating.   Contrary  to  the  comments  of
AFPC/DPPTR, a majority of the Board does find evidence that the member  took
action to change his SBP election (i.e., he scheduled  an  appointment  with
MPF representatives to discuss his options and obtained two separate  power-
of-attorneys to allow his spouse to act in his behalf).  The  MPF  commander
states that based on erroneous information obtained from the CAR, Air  Force
personnel counseled the applicant that a power-of-attorney was  adequate  to
change her husband’s SBP election.  Based on this erroneous information,  no
further attempts were made to obtain the member’s signature  on  a  new  SBP
election prior to his retirement.  In view of this, a majority of the  Board
believes the applicant has met her burden of establishing that she has  been
the victim of an error or injustice.  Therefore, a  majority  of  the  Board
recommends the member’s records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be  corrected  to  show  that  on  14 March  2002,  he  elected
Survivor Benefit Plan spouse coverage based on full retired pay.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-00654
in Executive Session on 30 September 2003, under the provisions of  AFI  36-
2603:

                       Mr. David C. Van Gasbeck, Panel Chair
                       Mr. Roscoe Hinton, Member
                       Mr. Mike Novel, Member




A majority of the members voted to  correct  the  records,  as  recommended.
Mr. Hinton recused himself from consideration of this case.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 3 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Apr 03.
    Exhibit E.  Letter, AFOSI/DPM, dated 8 May 03.
    Exhibit F.  Letter, AF/JAA, dated 27 Aug 03.
    Exhibit G.  Letter, AFBCMR, dated 29 Aug 03.
    Exhibit H.  Letter, Applicant, dated 9 Sep 03.




                                   DAVID C. VAN GASBECK
                                   Panel Chair

AFBCMR BC-2003-00654




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 APPLICANT, be corrected to show that on 14 March 2002, he
elected Survivor Benefit Plan spouse coverage based on full retired pay.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency