RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02372
INDEX CODE: 137.03
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His record be corrected to void his Survivor Benefit Plan (SBP)
election and he be refunded premiums he has paid.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He did not initially sign up for SBP. When he did however, he did not
know his wife could not receive SBP and CIC (sic). He has paid over
$3000 in premiums that he needs now in order to survive.
In support of his appeal, the applicant has provided correspondence
between himself and the Veteran’s Administration (VA), Defense Finance
and Accounting Service (DFAS), and his representative, along with his
January 2004 retired pay statement.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
He retired on 1 October 1970 and was married on 13 October 1973. He
elected spouse and child coverage based on a reduced level of retired
pay during an SBP open enrollment period authorized by Public Law (PL)
97-35 (1 October 1981 and 30 September 1982). Finance records
indicate the VA awarded the applicant disability compensation which
first exceeded his retired pay in October 1982. A direct remittance
account to pay SBP premiums was established at that time. He
continued to pay SBP premiums until October 1990, when he withdrew
from SBP participation under the provision of PL 96-402. He has paid
approximately $2,600 in premiums to date.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRT recommends denial. DPPRT states the applicant claims his
wife could not receive both SBP payments and Disability Indemnity
Compensation (DIC) is correct. The required integration between SBP
and DIC applies if a member’s death is ruled service connected by the
VA. When he made his SBP election, he had not been considered 100%
disabled by the VA for ten continuous years. Had he died from a cause
other than a service connected disability, his spouse would have
received SBP instead of DIC. Further, there is no legal provision for
retirees who withdraw from SBP under provision of PL 96-402 to receive
a refund of SBP premiums.
DPPRT’s complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant states he and his wife have and are experiencing severe
medical problems and are drowning in medical bills. His wife, a
teacher, is not able to return to work and has not worked for the past
two years. He contends he is a 100% disabled veteran but does not as
yet qualify for Combat Related Special Compensation (CRSC) and his
medical records are still frozen according to the Air Force. He asks
that he be reimbursed the less than $3,000 he paid into SBP over 20
years ago to help offset some of his medical bills.
_________________________________________________________________
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. There is no legal provision for retirees who
withdraw from SBP under provision of Public Law to receive a refund.
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 AFBCMR Docket Number BC-
2005-02372 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 26 Jul 05, w/atchs.
Exhibit B. Letter, AFPC/DPPRT, dated 31 Aug 05.
Exhibit C. Letter, SAF/MRBR, dated 9 Sep 05.
MICHAEL K. GALLOGLY
Panel Chair
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