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AF | BCMR | CY2006 | BC-2005-02915
Original file (BC-2005-02915.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
02915
                                             INDEX CODE:  137.00

                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  25 MARCH 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

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

___________________________________________________________________

APPLICANT CONTENDS THAT:

Neither she nor her spouse were notified that they had to file  for
SBP benefits.  They never received the information needed to file.

In support of her request, the applicant provided  a  copy  of  her
husband’s Certificate of Death.

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

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicates the member was retired  for  disability  on
16 Apr 58.  Defense Enrollment Eligibility Reporting System (DEERS)
records indicate he and the applicant were married  on  8  Mar  60.
There is no evidence the member returned an  election  form  during
any of the four SBP open enrollment periods conducted prior to  his
19 Oct 04 death.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial  stating,  in  part,  there  is  no
evidence of error in this case.  Survivors of military retirees may
continue to receive a portion of the sponsor’s retired pay only  if
the member was a participant in one of the annuity plans offered by
the Department of Defense.  There is no legal authority for the Air
Force to pay the survivor an annuity if the member did  not  choose
to provide coverage on the survivor’s behalf.

The applicant’s claim of non-notification is without  merit,  since
the law did not require the  Services  to  notify  spouses  if  the
member  did  not  enroll  in  the  Plan.   The  member   had   four
opportunities to elect survivor protection for the  applicant,  but
failed to do so.   SBP  enrollment  packets  and  newsletters  were
mailed to the decedent during all four SBP open enrollment  periods
to the address the decedent had provided to the finance center, the
address at which he resided from Oct 01  until  he  died.   SBP  is
similar to commercial life insurance in  that  an  individual  must
elect to participate and pay the associated premiums  in  order  to
have the coverage.  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.

Public Law (PL) 92-425, which established the SBP  on  21  Sep  72,
authorized an enrollment period for retired members  to  elect  SBP
coverage.   PLs  97-35,  101-189,  and  105-261  authorized   three
additional open enrollment periods (1 Oct 81 – 30 Sep 82, 1 Apr  92
– 31 Mar 93, and 1 Mar 99 – 29 Feb 00, respectively).   During  all
four open enrollment periods, members were advised by  direct  mail
of their eligibility to make an election.  The enrollment  packets,
as well as  the  Afterburner,  USAF  News  For  Retired  Personnel,
published during those timeframes, were sent to the  correspondence
address members had provided to the finance  center  and  contained
points  of  contact  for  retirees  to  use  to   gain   additional
information.  There was no provision in these laws  which  required
the Services to notify a spouse  if  the  member  did  not  enroll.
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.

A complete copy of the Air Force evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 28 Oct 05, a copy of the Air Force evaluation was  forwarded  to
the applicant for review and response within 30 days.  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, 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-
02915  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 24 Aug 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 24 Oct 05.
    Exhibit C.  Letter, SAF/MRBR, dated 28 Oct 05.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair

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