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AF | BCMR | CY2005 | BC-2005-02638
Original file (BC-2005-02638.doc) Auto-classification: Denied

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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