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AF | BCMR | CY2004 | BC-2002-02392
Original file (BC-2002-02392.DOC) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02392
            INDEX CODE:  137.01
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His participation in the Survivor Benefit Plan (SBP) program  be  terminated
effective 1 Jan 02.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Because his spouse would be entitled to  Dependency  Indemnity  Compensation
(DIC) in the amount of  $945  a  month,  which  surpasses  the  SBP  annuity
amount, she would not be entitled to receive an SBP annuity.

In support of his request,  applicant  provided  a  personal  statement  and
documentation  associated  with  a  Congressional  inquiry.   His   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was retired for disability reasons on 16 Feb 60.   During  the
SBP initial enrollment period, he elected spouse-only SBP coverage based  on
full retired pay.  He currently has a Department of Veterans  Affairs  (DVA)
disability rating of 60 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR  reviewed  applicant's  request  and  recommends  denial.   DPPTR
states that Public Law 96-402  permits  members  who  have  been  rated  100
percent disabled by the DVA for five continuous years immediately  following
retirement, or ten consecutive years if rated 100 percent after  retirement,
to withdraw from SBP.  They are permitted to withdraw because  their  deaths
will  be  presumed  to  be  service-connected;  therefore,  their  surviving
spouses will be entitled to monthly DIC payments from the DVA.  DIC  reduces
SBP annuity dollar-for-dollar.  If a member withdraws under this  provision,
there is no refund of premiums; however, applicable spouse premiums  can  be
refunded to the  spouse  following  the  member's  death.   The  applicant's
current DVA rating is 60 percent.  Unless he is rated  100  percent  by  the
DVA and maintains that rating for 10 continuous years, he is  ineligible  to
withdraw from the plan.  He could have terminated his  SBP  coverage  during
the 1998 - 1999 open disenrollment period, but did not submit a  request  to
do so.  During this period he had time and resources to obtain  guidance  on
disenrollment procedures.  There is no provision for  waiving  or  extending
the one-year period authorized to terminate participation.

The DPPTR evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23  Aug
02 for review and comment within 30 days.  As of this date, this office  has
received no response.

_________________________________________________________________

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 the applicant's submission, we are not persuaded  that  relief
is warranted.  We agree with the  opinion  and  recommendation  of  the  Air
Force office of primary responsibility and  adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  In the absence of evidence to the contrary, we find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this
application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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  02-02392  in
Executive Session on 21 Jan 03, under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Roscoe Hinton, Jr., Member
      Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jul 02, w/atchs.
    Exhibit B.  Letter, AFPC/DPPTR, dated 20 Aug 02.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Aug 02.




                                   DAVID C. VAN GASBECK
                                   Panel Chair

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