RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
02539
                                             INDEX CODE:  137.00

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  15 FEBRUARY 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to  entitle  her  to  a
Survivor Benefit Plan (SBP) annuity.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband told her that she would receive  his  pension  when  he
died.  She has been denied this pension and currently lives on very
minimal money from the Social Security Administration.

In support  of  her  request,  the  applicant  provided  copies  of
documentation  associated  with  her  husband’s  retirement,  their
marriage certificate, his Certificate of Death, and  correspondence
pertaining to her claims for Department  of  Veterans  Affairs  and
Social Security benefits.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicates the member and the applicant  were  married
on 10 Jul 38, and he elected child only coverage  (with  Option  4)
under the Retired Serviceman’s Family Protection Plan (RSFPP) prior
to his 1 Feb 65 active duty retirement.  Premiums for this coverage
were  approximately  $3  per  month.   The  youngest   child   lost
eligibility as an RSFPP beneficiary effective Nov 80.  There is  no
evidence the member returned a valid SBP election during any of the
four open enrollment periods conducted before his 13 Aug 01 death.

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT reviewed this application and recommends denial.  Public
Law (PL) 87-381, which established the RSFPP, required that members
make an election prior to  completing  18  years  of  service.   If
married, members could decline, or elect RSFPP coverage for  spouse
only, spouse  and  child,  or  child  only.   Child  only  coverage
terminated when the youngest child lost eligibility at age 23.  The
RSFPP was a voluntary program fully supported by  participants  and
had no Government subsidy.  Both  the  RSFPP  annuity  and  monthly
premiums were a fixed percentage of the member’s retired pay as  of
the date of retirement and  are  not  increased  by  Cost-of-Living
Adjustments (COLAs).

PL 92-425, which established the SBP on 21 Sep 72, authorized an 18-
month enrollment period (21 Sep 72 - 20 Mar 74) for retired members
to elect SBP coverage, but were  not  required  to  return  an  SBP
election form in order to  decline  coverage.   RSFPP  participants
could have terminated previous RSFPP coverage, or  retained  it  in
addition to a new SBP election.  Subsequently, PLs 97-35,  101-189,
and 105-261  authorized  additional  SBP  open  enrollment  periods
(1 Oct 81 – 30 Sep 82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29  Feb
00, respectively) so that retirees  could  elect  or  increase  SBP
coverage.  The enrollment packets, as well as the Afterburner, News
for USAF Retired Personnel, published during  those  periods,  were
sent to the correspondence address  members  had  provided  to  the
finance center and contained points  of  contact  to  use  to  gain
additional information.  There  were  no  provisions  in  the  laws
during these open enrollment  periods  requiring  the  Services  to
notify spouses of retired members if the member did not  enroll  in
the SBP.  Federal  Appeals  Court  decision—-Appeal  85-927,  Helen
Passaro vs. U.S.--held that the notice provision does not apply  to
a service member already entitled to retired  or  retainer  pay  on
21 Sep 72.

Even though the applicant claims that the member told her she would
receive his pension upon his death, RSFPP and SBP  are  similar  to
commercial life insurance in  that  an  individual  must  elect  to
participate and pay  the  associated  premiums  in  order  to  have
coverage.  There is no evidence the member elected spouse  coverage
under the SBP during the Plan’s initial enrollment or during  later
open enrollments.  It is and was each retiree’s  responsibility  to
ensure they understand the provisions of  survivor  plans  as  they
apply to their individual situation and to  contact  administrators
if they don’t understand.  It would be inequitable to those members
who chose to participate when eligible  and  subsequently  received
reduced retired pay, and to other widows whose sponsors  chose  not
to participate, to provide entitlement to this widow on  the  basis
of the evidence presented.

A complete copy of the evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s daughter responded in behalf of her mother.  Noting
that the Air Force evaluation states her father elected child  only
coverage (with Option 4) prior to his  1  Feb  65  retirement,  she
states that perhaps he was told  or  further  understood  that  the
coverage for her mother was automatic.   She  cannot  see  how  her
father, who was always the sole provider for her family, would have
neglected to take care of her mother.

As to the means of notification during the open enrollment periods,
her parents moved and used her address, which they lived  at  since
1965,  as  their  permanent  address.    She   believes   using   a
“newsletter” is a poor means of communication to address  an  issue
so important for retirees.

She further stated that according to the SBP  Fact  Sheet,  Reserve
Component Survivor  Benefit  Plan,  revised  December  2003,  under
eligibility, “…changes must be made in writing  and  be  signed  by
both you and your spouse.”  She noted Option C [immediate  annuity]
and questions if Reserve Components are afforded these options, why
not  active  retirees.   Her  understanding  is  that  a   spouse’s
signature is required when making changes.

[Examiner’s note:  Effective 1 Jan 01, Reservists are automatically
enrolled for full immediate annuity if they do not make an election
within the required time period of if they elect less than  maximum
coverage without spouse’s concurrence.]

The complete response, with attachments, 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.   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-
02539  in  Executive  Session  on  10  February  2006,  under   the
provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Aug 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 15 Sep 05.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Sep 05.
    Exhibit D.  Letter, Applicant’s daughter, 15 Oct 05,
                w/atchs.



                                   KATHY L. BOOCKHOLDT
                                   Panel Chair