RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00671
            INDEX CODE:  137.3
            COUNSEL:

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 MAY 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be  allowed  to  withdraw  from  Survivor  Benefit  Plan  (SBP)  program,
effective 1 February 1977, based on the fact he was 100% VA disabled  within
the first five years of retirement.
_________________________________________________________________

APPLICANT CONTENDS THAT:

While on active duty, he was involved in  a  motor  vehicle  accident  which
killed his spouse, and injured his son.  He retired from the Air  Force  and
his name was placed on the Temporary Disability  Retired  List  (TDRL).   He
was evaluated by the Department of Veterans Affairs  (DVA)  and  received  a
temporary 100% rating.  He received a letter from the DVA advising him  that
his disability would be reduced to 80% unless he qualified for 100%  due  to
individual unemployability.  He received a  letter  the  DVA  indicating  he
would remain at 100%.

He  does  not  recall  signing  up  for  SBP.   When  he  started  receiving
statements, he wrote to the Defense  Finance  &  Accounting  Service  (DFAS)
center advising them he did not elect  the  program  and  did  not  wish  to
participate.  He received  a  letter  informing  him  that  his  request  to
withdraw from SBP had been received, and advising him to  send  his  request
to DFAS.  He submitted his request for  withdrawal  from  the  program,  but
never received a response.

Results from his Physical Evaluation  Board  (PEB)  show  he  suffered  from
chronic brain syndrome due to trauma associated with chronic depression  and
closed head injury.  He was incapable of making  any  irrevocable  financial
decisions and has no recollection of ever signing up for  the  SBP  program.
He would like his military record to reflect that he was 100%  DVA  disabled
within the first five years of retirement and be allowed  to  withdraw  from
the SBP program effective 1 February 1977.  He married his second spouse  on
16 August 1973 and should only be  charged  SBP  premiums  from  1 September
1973 to 1 February 1977.

In support  of  the  application,  the  applicant  submits  a  copy  of  his
separation document and correction, copies  of  correspondence  between  the
applicant, DVA and SBP offices, a copy of his PEB results, marriage  license
and  his  second  wife’s  death  certificate.   The   applicant's   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The member was not married, had eligible children and his  name  was  placed
on the Temporary Disability  Retirement  List  (TDRL)  effective  1 February
1972.  On 22  March  1972,  he  was  awarded  100%  disability  by  the  DVA
retroactive  to  his  date  of  retirement  and  his  DVA   disability   pay
immediately exceeded his Air Force retired pay.  Documents provided  by  the
member show that he and his second spouse married  on  16  August  1973  and
spouse SBP coverage was established on her behalf during  the  initial  open
enrollment period authorized by PL 92-425.  A direct remittance account  was
established to process payments of SBP monthly premiums, but the costs  were
never paid and  a  debt  began  to  accumulate.   The  youngest  child  lost
eligibility June 1980.  In June 1990, the applicant  attempted  to  withdraw
from the SBP and he was directed to address his request  to  the  Air  Force
Accounting and Finance  Center  (AFAFC).   His  second  spouse  died  on  23
October 2003.  DFAS suspended the spouse cost and coverage; however, an  SBP
debt of approximately $46,000 has accrued to date.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retiree Services  Branch,  AFPC/DPPTR,  reviewed  this  application  and
recommended partial relief.  DPPTR indicated an SBP  election  is  valid  as
long as the beneficiary remains eligible. Public Law (PL) 96-402, 9 Oct  80,
permits members, who have been rated 100%  disabled  by  the  Department  of
Veterans Affairs (DVA)  for  five  continuous  years  immediately  following
retirement, or ten consecutive years if  rated  100%  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 Dependency  and  Indemnity  Compensation
(DIC) payments from the VA.  DIC reduces an SBP spouse annuity,  dollar-for-
dollar.  If a member withdraws under this provision, there is  no  immediate
refund of premiums; however, applicable spouse premiums paid by  the  member
may be refunded to the spouse following  the  member’s  death.  To  withdraw
from the SBP under  this  provision,  the  eligible  member  must  submit  a
written request to DFAS — Cleveland Center (DFAS-CL) with the  beneficiary’s
notarized consent. Withdrawal is effective  the  month  following  DFAS-CL’s
receipt of the request.

DPPTR is of the opinion that the applicant’s  claim  he  did  not  elect  to
participate in the SBP seven months  after  he  retired  is  without  merit.
They also do not believe his request that his records be corrected  to  show
he withdrew from the program on 1 February 1977 is also without merit  since
PL 96-402 permitting totally disabled members to  withdraw  did  not  become
effective until  October  1980.   There  is  no  evidence  he  attempted  to
withdraw from the program prior  to  June  1990.   Had  the  finance  center
received a valid request to terminate SBP  coverage,  SBP  monthly  premiums
would have ceased at that time.  However, an SBP  premium  debt  of  $13,300
would remain.

DPPTR found no evidence of an Air Force error  in  this  case;  however,  to
preclude a possible injustice, they recommend partial relief be  granted  by
correcting the member’s record to reflect he withdrew from the SBP under  PL
96-402 effective 1 September 1990.

DPPTR’s evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force  evaluation  was  forwarded  to  the  applicant  for
review and comment on 11 March 2005.  As  of  this  date,  this  office  has
received no response (Exhibit C).

_________________________________________________________________

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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence  of  possible  injustice.    After   reviewing   the   applicant’s
submission and the evidence of record, we are persuaded that some relief  is
warranted.  We  have  noted  the  applicant  asked  for  his  record  to  be
corrected to show he  withdrew  from  the  SBP  plan  on  1  February  1977;
however, the law permitting totally disabled members to  withdraw  from  SBP
did not take effect  until  1 December  1980,  so  the  law  for  which  the
applicant cites was not in effect in 1977.   However,  we  believe  had  the
applicant been aware of the change in law which allowed  members  rated  100
percent disabled by the VA to withdraw  from  the  program,  he  would  have
taken  the  appropriate  action  and  withdrew   from   the   SBP   program.
Accordingly, the Board believes that his  records  should  be  corrected  as
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  he  withdrew  from  the  Survivor
Benefit Plan program under PL 96-402 effective 1 December 1980.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2005-
00671 in Executive Session on 7 July 2005, under the provisions of  AFI  36-
2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Kathy L. Boockholdt, Panel Member
      Ms. Marcia J. Bachman, Panel Member

All members voted to correct  the  record  as  recommended.   The  following
documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 16 Feb 05, with attachments.
      Exhibit B.  Letter, HQ AFPC/DPPTR, dated 4 Mar 05.
      Exhibit C.  Letter, SAF/MRBR, dated 11 Mar 05.




      MICHAEL J. NOVEL
      Panel Chair


AFBCMR BC-2005-00671




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 he withdrew from the
Survivor Benefit Plan (SBP) program under PL 96-402 effective 1 December
1980.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency