RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
00953
                                             INDEX CODE:  137.04

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  YES



MANDATORY CASE COMPLETION DATE:  20 SEPTEMBER 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to  entitle  her  to  a
Survivor Benefit Plan (SBP) annuity.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband always told her that his monthly deduction was for  her
if anything happened to him, since she had no other form of  income
to support herself.  She is seeking financial assistance under  the
survivor service plan, which was deducted from  her  husband’s  pay
every month.

In support of her request, the applicant  provided  copies  of  her
husband’s Certificate of Death, Certificate of Birth,  and  various
other documents pertaining to his retirement from the Air Force.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicates the member and the applicant were  married,
and he elected child  only  coverage  (with  Option  4)  under  the
Retired Serviceman’s Family Protection Plan (RSFPP)  prior  to  his
1 Mar 72 retirement.  Premiums for this coverage were approximately
$6 per month.  There is no evidence the member elected SBP coverage
on the applicant’s behalf during the initial open enrollment or any
of the three open enrollment periods which  followed.   The  member
died on 5 Dec 04.  The youngest child (date of birth 12 Nov 63)  is
incapacitated, but the child’s RSFPP annuity payments  ($233)  have
not yet begun.  Had  the  decedent  elected  SBP  coverage  on  the
applicant’s behalf, the cost would have been at approximately  $134
per month.

___________________________________________________________________



AIR FORCE EVALUATION:

AFPC/DPPRT  reviewed  this  application  and   recommends   denial.
Retirees were provided an 18-month period (21 Sep 72 - 20  Mar  74)
following the SBP’s enactment to elect coverage.  Members, who were
already retired on the date of the Plan’s implementation, were  not
required to return  an  SBP  election  form  in  order  to  decline
coverage.  RSFPP participants could have terminated previous  RSFPP
coverage, or retained  it  in  addition  to  a  new  SBP  election.
Subsequently,  Public  Laws  (PLs)  97-35,  101-189,  and   105-261
authorized additional SBP open  enrollment  periods  (1  Oct  81  –
30 Sep 82, 1 Apr 92 – 31 Mar  93,  and  1  Mar  99  –  29  Feb  00,
respectively)  so  that  retirees  could  elect  or  increase   SBP
coverage.  The enrollment packets, as well as the Afterburner, News
for USAF Retired Personnel, published during  those  periods,  were
sent to the correspondence address  members  had  provided  to  the
finance center and contained points  of  contact  to  use  to  gain
additional information.  There was no provision in these laws  that
required the Services to notify a retiree’s spouse  if  the  member
did not enroll.  Federal  Appeals  Court  decision—-Appeal  85-927,
Helen Passaro vs. U.S.--held that the  notice  provision  does  not
apply to a service member already entitled to retired  or  retainer
pay on 21 Sep 72.

There is  no  legal  authority  for  the  Air  Force  to  pay  this
petitioner an RSFPP annuity because  the  decedent  did  not  elect
coverage on her behalf under  that  program.   Similarly,  the  Air
Force may not pay an SBP annuity  to  the  applicant,  because  the
member retired before the implementation of the SBP and he did  not
choose to provide SBP coverage for her when he was eligible  to  do
so.  Both annuity programs are similar to commercial life insurance
in  that  an  individual  must  elect  coverage  for  an   eligible
beneficiary and pay  the  associated  premiums  in  order  to  have
coverage.  It would be inequitable to those members, who  chose  to
provide spouse coverage and whose  retired  pay  was  appropriately
reduced,  and  to  other  widows  whose  sponsors  chose   not   to
participate, to provide entitlement to this widow on the  basis  of
the evidence presented.

A complete copy of the evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states they had no child born on 12  Nov  63  and  no
child incapacitated.  She has provided a copy of  her  son’s  birth
certificate reflecting a DOB of 12 Oct 63.  She  submits  a  letter
from her son’s employer,  stating  he  has  been  employed  in  the
framing business continuously since 1983.

She provided an amendment to her husband’s  death  certificate,  to
reflect his grade as a master sergeant.

Applicant’s complete response 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.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case; however, 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.   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   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 BC-2005-
00953 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 Jane Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Mar 05 w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 22 Apr 05.
    Exhibit C.  Letter, SAF/MRBR, dated 29 Apr 05.
    Exhibit D.  Response, Applicant, undated, w/atchs.



                                   MICHAEL J. NOVEL
                                   Panel Chair