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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