RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02638
INDEX CODE: 137.00, 137.01
COUNSEL: DAVID M. FREEDMAN
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 26 FEBRUARY 2007
This application for correction of the records of L. F-- was submitted
by his widow.
_________________________________________________________________
APPLICANT REQUESTS:
Corrective action that would entitle her to a Survivor Benefit Plan
(SBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The six-year limitation period should be excused. She was never
advised that there was any limitation period. She intended to “finish
wrapping up my affairs” in July 2004; however, she became ill and was
not able to complete this task until November 2004. The letter from
DFAS indicates the claim package should have been submitted by 6
September 2004.
In support of her request, the applicant submits an Affidavit, a
letter from the Defense Finance and Accounting Service (DFAS) Retired
and Annuity Pay Section and a copy of the claim form package. The
applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Information provided by the Air Force office of primary
responsibility, AFPC/DPPRT (Retiree Services) indicates the former
member was released from active duty on 31 January 1963 and retired in
the grade of major, effective 1 February 1963. DPPRT also advised
that, in 1972, during the initial SBP open enrollment season, the
former member elected spouse-only coverage under the SBP based on full
retired pay. The applicant and the former member were married on 8
August 1945. The former passed away on 6 September 1998.
_________________________________________________________________
AIR FORCE EVALUATION:
DFAS/Military Retired Pay Section recommends the application be
denied. DFAS states that all appropriate claim forms were furnished
to the applicant in September 1998. However, she did not submit the
completed claim forms until June 2005, more than six years after the
death of her husband. The Comptroller General of the United States
has determined that failure to file a valid claim within the six year
period would bar the claim. DFAS indicates that the applicant has
failed to provide any extenuating circumstances for her failure to
timely apply for benefits. The DFAS evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 2
September 2005 for review and response. As of this date, no response
has been received by this office (Exhibit C).
_________________________________________________________________
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, other than her own assertions, we have seen no medical
evidence of prolonged medical care that would have prevented her from
submitting the appropriate claim forms in a timely manner. We,
therefore, agree with the opinion and recommendation of the
appropriate office of primary responsibility and adopt the rationale
expressed as the basis for our decision that the applicant has failed
to sustain her burden that she has suffered either an error or an
injustice. In view of the above and absent evidence to the contrary,
we find no 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 this application in
Executive Session on 27 October 2005, under the provisions of AFI 36-
2603:
Mr. Michael K. Gallogly, Panel Chair
Mr. Alan A. Blomgren, Member
Ms. Kathleen F. Graham, Member
The following documentary evidence was considered in connection with
AFBCMR Docket Number BC-2005-02638.
Exhibit A. DD Form 149, dated 17 Aug 05, w/atchs.
Exhibit B. Letter, DFAS, dated 26 Aug 05.
Exhibit C. Letter, SAF/MRBR, dated 2 Sep 05.
MICHAEL K. GALLOGLY
Panel Chair
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However, in the event the applicant provides the required document, an amended death certificate, it would be appropriate to correct the decedent’s records to show the applicant was the eligible spouse beneficiary upon his death. A spouse’s eligibility to receive an SBP annuity terminates upon divorce. However, to date, the applicant has not provided an amended death certificate.
AF | BCMR | CY2005 | BC-2005-01610
Also, the applicant’s mother was not informed by the military of the need to file any paperwork to claim these benefits, nor was she aware that they even existed. Applicant's complete response is attached at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant states it is unlikely that the applicant’s mother knowingly decided to forgo SBP benefits. After thoroughly reviewing the documentation submitted...
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A week after the divorce from her husband, she took the divorce decree to Offutt AFB to finish the paperwork for DFAS for the annuity of her former husband’s retirement. In support of her application, applicant provided personal statements from both her and her daughter, copies of her 2 Jun 01 letter to DFAS, a 2 Jun 01 letter to her former husband, their divorce decree, a certified letter to the Director of DFAS from her attorney, her former husband’s death certificate, and his retirement...
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AF | BCMR | CY2005 | BC-2005-02236
The now-deceased member received a refund of premiums he paid following his divorce from the applicant. He made no attempt to re-establish applicant’s SBP coverage by electing “former spouse” coverage after receipt of the refund and their divorce decree was silent regarding SBP coverage. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC- 2005-02236 in Executive Session on 27 October 2005, under...
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AF | BCMR | CY2006 | BC-2005-02793
Furthermore, Section V of the DD Form 2656-2 clearly instructed members to have their spouses’ signature notarized if not signed in front of an SBP counselor prior to submitting the form. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: It is evident to her that the DD Form 2656-2 was not completed properly due to a discrepancy between the date of their signatures and the date it was notarized. In their previous advisory, dated...
AF | BCMR | CY2006 | BC-2006-00708
At the time of her retirement, applicant was unmarried and elected child- only SBP coverage. On 1 Mar 05 she requested her spouse be added to her SBP coverage. After a thorough review of the evidence of record, we find no evidence of an error in this case and after careful consideration of her submission, we are not persuaded she has been the victim of an injustice.
AF | BCMR | CY2007 | BC-2006-01570
He told her that her husband was making SBP payments and therefore she should have been receiving an annuity after his death. DPPTR states there is no basis in law to waive the two-year survival requirement; however, if the Board’s decision is to grant relief, the record could be corrected to show the member elected spouse only SBP coverage based on full-retired pay on 27 July 1977, prior to the first marriage anniversary. As of this date, this office has received no response (Exhibit D).
AF | BCMR | CY2006 | BC-2006-01327
DPPRT states the former member elected child only SBP coverage based on full retired pay prior to his 1 February 1975 retirement, but he did not report or document he had a disabled child. Should the applicant provide the requested information, this Board would be willing to review the documents for possible reconsideration. Exhibit C. Letter, SAF/MRBR, dated 28 Jul 06.