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AF | BCMR | CY2005 | BC-2005-00804
Original file (BC-2005-00804.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00804
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  8 AUG 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late-husband’s records be corrected to reflect he elected Survivor
Benefit Plan (SBP) coverage for her.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was never notified that her late husband declined SBP prior to his
retirement.  She believes he kept the information from her so he would
not have to have the money deducted from his retirement check.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The servicemember and the applicant were married on  15  August  1975.
Prior to the servicemember’s 1 August 1984 retirement, he declined  to
elect SBP coverage.  A notation in the Defense Finance and  Accounting
Service (DFAS) transaction  history  indicates  at  the  time  of  the
servicemember’s retirement the required spouse notification letter had
been   received,   thereby   authorizing   the   validation   of   the
servicemember’s election to decline SBP coverage.   The  servicemember
died on 29 December 1997.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT states  on  21  September  1972,  Public  Law  (PL)  92-425
established SBP which required spouses to be informed  when  a  member
declined or elected less than maximum spouse coverage.  The U.S. Court
of Claims has consistently ruled that  widows  of  servicemembers  who
retired after the implementation of SBP, and who were not given notice
of the servicemember’s election, were entitled to full  SBP  coverage.
However, the passage of PL 199-145, required spouses to concur in  the
SBP election for servicemember’s retiring on or after 1 March 1986.

AFPC/DPPRT further  states  the  intent  of  the  spouse  notification
requirement  was  to  ensure  spouses,   upon   the   death   of   the
servicemember, did not learn for the first time they were not  covered
by SBP.  Notwithstanding the failure of the finance center  to  retain
documentation of the notification letter, in  this  case,  the  record
clearly and specifically reflects the required notice was sent to  the
applicant.  Nevertheless,  the  applicant  has  provided  a  notarized
statement alleging  she  did  not  receive  the  notification  letter.
Although copies of the spouse notification letter were not retained by
the finance center, the annotation in the servicemember’s  transaction
history was, at the time, the standard procedure for documenting  that
the required spouse notification was or was not properly received.

AFPC/DPPRT finds no evidence of  error  or  injustice  and  therefore,
recommends the requested relief be denied.

A complete copy of the Air Force evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to applicant
on 20 May 2005 for review and response within 30  days.   As  of  this
date, no response has been 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, we agree with the opinion and the recommendation of  the  Air
Force and adopt its rationale as the basis for our conclusion that the
applicant has not been the victim of an error or  an  injustice.   The
applicant alleges that she was never notified that  her  late  husband
declined SBP.  However, there is an annotation in the  servicemember’s
pay history that indicates spouse notification had  been  received  by
DFAS authorizing the finance center to  validate  the  servicemember’s
election to decline coverage under the SBP.  Therefore, 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(s)   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 AFBCMR Docket Number BC-
2005-00804 in Executive Session on 7 July 2005, under  the  provisions
of AFI 36-2603:

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

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 3 Feb 05, w/atchs.
      Exhibit B. Letter, HQ AFPC/DPPRT, dated 17 May 05.
      Exhibit C. Letter, SAF/MRBR, dated 20 May 05.




                             MICHAEL J. NOVEL
                             Panel Chair

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