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AF | BCMR | CY2005 | BC-2005-02372
Original file (BC-2005-02372.doc) Auto-classification: Denied

                       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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