RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
01269
                                             INDEX CODE:  137.03

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  11 OCTOBER 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to terminate  his  spouse  only  coverage  under  the
Survivor Benefit Plan (SBP) retroactive to the date  of  his  Civil
Service (CS) retirement (24 May 1973).

___________________________________________________________________

APPLICANT CONTENDS THAT:

His current existing pay records will  unjustly  place  his  spouse
(after his death) in violation  of  Title  5,  United  States  Code
(U.S.C.) and DoD Financial Management Regulation  7000.14-R,  which
states that you  cannot  receive  both  annuities  under  the  laws
administered by the Office of Personnel Management (OPM).

He has both the USAF SBP and Federal Civil Service Annuity  Benefit
Program; both provide a survivor benefit for his  spouse  upon  his
death.  Both were valid  and  effective  for  a  long  time.   Dual
compensation of these programs is prohibited.  In  order  to  avoid
violation of dual compensation, he elected to  drop  the  USAF  SBP
coverage.

In support of his request, applicant provided a personal statement,
copies of letters from various offices at the Defense  Finance  and
Accounting Service, a letter from  the  U.S.  Office  of  Personnel
Management (OPM), a Survivor Benefit Plan Withdrawal Consent  Form,
Certification  of  Annuity  Award  from  OPM,  a  Retiree   Account
Statement, and a Direct Remittance Summary Account statement.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicated the member and his spouse were  married  on
4 Apr 42.  The member retired from the Air Force  effective  1  Sep
59.  He elected spouse only SBP coverage based on full retired  pay
during the SBP’s initial open enrollment period (21 Sep 72 – 20 Mar
74).

Documents provided by the member show that he retired under the  CS
retirement plan and elected CS survivor coverage effective  24  May
73.  He did not combine his military  service  to  enhance  his  CS
retirement pay, or  waive  his  Air  Force  retired  pay.   Finance
records indicate that disability compensation awarded to the member
by the Department of Veterans Affairs (VA) exceeded his retired pay
in Dec 92, and a direct remittance account  was  established.   The
member continued to  remit  SBP  premiums  until  Mar  96  when  he
discontinued  payments  and  a  debt  began  to  accrue  (currently
$8,800).  In Jul 03, the Defense Finance and Accounting  Service  –
Cleveland Center  (DFAS-CL)  erroneously  terminated  the  member’s
spouse SBP coverage; however, in Mar 05, the error  was  corrected,
coverage was reestablished and the SBP debt continues to accrue.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial, stating the applicant’s claim that
his wife would  not  receive  both  the  military  and  CS  annuity
benefits after his death are without merit.   The  member  did  not
combine his military service time to enhance his CS retirement pay,
therefore both  annuities  would  be  paid.   The  member  had  the
opportunity to disenroll during the period authorized by Public Law
(PL) 105-85, but did not  submit  a  request  to  do  so.   Had  he
disenrolled under PL 105-85, the debt, retroactive from Mar  96  to
Jun 98, would remain.   In  the  event  he  has  been  100  percent
disabled continuously for ten years, he may exercise his option  to
terminate  SBP  coverage  under  the  provisions  of   PL   96-402.
Permitting this applicant an additional  opportunity  to  terminate
SBP coverage would be inequitable  to  other  retirees  in  similar
situations.

PL 92-425, effective 21  Sep  72,  established  the  SBP  with  the
provision that a member, who waives military retired pay to enhance
their subsequent CS retirement and elects CS survivor coverage, may
not continue  to  be  a  participant  in  the  military  SBP.   The
previously named beneficiary will not be  entitled  to  an  annuity
based on the member’s military retired pay.   Members  who  do  not
combine military service time  to  increase  their  CS  retirement,
whether or not electing CS SBP, may not  terminate  their  military
SBP.  SBP coverage may not be arbitrarily terminated as long as the
beneficiary remains eligible.

PL 105-85 (18 Nov 97), established a one-year window  during  which
participants could disenroll from the SBP (17 May 98 – 16 May  99).
Retirees had to complete a DD Form 2656-2,  Survivor  Benefit  Plan
(SBP) Termination Request, and obtain the  beneficiary’s  notarized
consent.  Disenrollments were effective  the  month  following  the
DFAS-CL’s receipt of a  properly  completed  request.   Termination
forms must have been postmarked not later than 16 May 99.

PL 96-402, 9 Oct 80, permits  members,  who  have  been  rated  100
percent disabled by the VA for five  continuous  years  immediately
following retirement, or ten consecutive years if rated 100 percent
after retirement, to withdraw from  the  SBP.   These  members  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 a spouse’s SBP annuity,  dollar-
for-dollar.  If a member withdraws under this provision,  there  is
no  immediate  refund  of  premiums;  however,  applicable   spouse
premiums may be refunded  to  the  spouse  following  the  member’s
death.  To withdraw from the SBP under this provision,  the  member
must submit a written request to  DFAS-CL  with  the  beneficiary’s
notarized consent.  Withdrawal is  effective  the  month  following
DFAS-CL’s receipt of the request.

If the Board’s decision is to grant partial  relief,  the  member’s
record should be corrected to  reflect  he  disenrolled  under  the
provisions of PL 105-85 effective 1 Jun  98.   Approval  should  be
contingent upon the member’s providing a notarized  statement  from
his wife concurring in the permanent revocation of her SBP coverage
currently in effect.

The complete Air Force evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

His CS retirement was a forced medical disability  retirement.   He
elected to keep his CS survivor coverage  because  it  contained  a
more favorable and higher survivor dollar benefit.  The  CS  option
had a retirement built-in benefit factor that required no  premiums
for a lower dollar  benefit.   It  yielded  higher  than  the  USAF
survivor plan.  His packet contains documentary  evidence  that  he
was paid a  refund  of  over  $3,000  for  pre-paid  USAF  survivor
premiums.  Along with evidence of SBP termination, he  was  advised
that an additional amount of over $2,000 was withheld to be applied
to the alleged claim of USAF indebtedness exceeding $24,000,  later
found to be erroneous.  Since March 1996, with a partial return  of
premiums, no SBP existed.  He  is  being  billed  each  month  with
interest, while his asset remains in limbo and his pay record in  a
“suspended status.”  In March 2005, the  error  was  corrected  and
coverage was reestablished and  SBP  continues  to  accrue.   Since
March 1996, he was  under  the  assumption  his  SBP  coverage  was
officially terminated.   In  a  time  frame  of  almost  10  years,
misinterpretations, errors, alleged  claims  of  indebtedness  from
conflicting sources have existed and continue.

Repeated unsuccessful efforts by various elements of  support  have
contributed to the current issue  of  indebtedness.   The  interest
accrued thru the period of validity of the alleged debt, now totals
$8,912.11 as of his last bill, with  a  due  date  of  29  May  05.
Request relief as the advisory  board  recommends,  partial  relief
with a corrected date of 1 Jun 98.

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 its  rationale
as the basis for our conclusion that the applicant has not been the
victim of  an  error  or  injustice.   However,  if  the  applicant
provides a properly notarized statement from his wife concurring in
the permanent revocation of her SBP coverage currently  in  effect,
the Board would be willing to reconsider this request.   Therefore,
in the absence of evidence to the contrary, we find  no  compelling
basis to recommend granting the relief sought in this application.

___________________________________________________________________

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-
01269 in Executive Session on 27 October 2005, under the provisions
of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Kathleen F. Graham, Member
      Mr. Alan A. Blomgren, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Apr 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 17 May 05.
    Exhibit C.  Letter, SAF/MRBR, dated 20 May 05.
    Exhibit D.  Letter, Applicant, dated 25 May 05.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair