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AF | BCMR | CY2006 | BC-2006-01227
Original file (BC-2006-01227.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01227
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken that would allow her to receive a  Survivor
Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She never waived her entitlement to an Air Force pension, or was aware
until after her husband’s death, that she would  not  receive  an  Air
Force pension.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement and copies of marriage and birth certificates and a DD  Form
2064, Certificate of Death (Overseas).

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

_________________________________________________________________

STATEMENT OF FACTS:

The decedent and the applicant were married on 28 February 1951.   The
member did not enroll in the Retired  Serviceman’s  Family  Protection
Plan (RSFPP) prior to his 1 September 1966 retirement and there is  no
evidence he returned an election form during either  the  initial  SBP
open enrollment or the 1981-1982 open enrollment period.  He  died  on
14 March 1983.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT recommends denial.   DPPRT  stated  the  member  had  three
opportunities to elect  survivor  protection  for  the  applicant  but
failed to do so.  SBP enrollment packets and newsletters  were  mailed
to the decedent during both SBP open enrollment periods to the address
the decedent had provided to the finance center.  SBP  is  similar  to
commercial  life  insurance  in  that  an  individual  must  elect  to
participate and pay the associated premiums in order to have coverage.
 The applicant offers no explanation for her more than 23  year  delay
in seeking corrective  action.   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.  There is no evidence of Air Force error or
injustice in this case.

DPPRT’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant understood that participation in SBP  was  mandatory  rather
than elective and the only choice involved  was  whether  or  not  the
member should reduce his  own  entitlement  and  include  her  in  the
scheme.  This opinion implies her husband elected  to  participate  in
the plan and then deliberately excluded her.   She  does  not  believe
this to be the case.  She asks the Board  to  consider  her  husband’s
diminished capacity at the time due to alcoholism, documented  in  his
medical records.  Further, and as a  result  of  his  alcoholism,  she
believes he had little regard for his own future  financial  security,
let alone hers.  While she understands the rules  have  changed  since
her husband’s death regarding SBP specifically, the Air Force  can  no
longer exclude spouses from pension entitlements without  consultation
and notes this new advantage seems to be  an  admission  the  previous
regulations were defective and have  led  to  injustices  for  service
widows such as her and others.  She acknowledges the mention of the 23-
year delay in applying for corrective action.  When her  husband  died
suddenly, an airman was assigned to oversee her husband’s affairs  and
it was then she found out she would not be entitled to his retirement.
 She was also informed she had no recourse or  any  corrective  action
she could consider to right the wrong.  Many letters she wrote to  the
Air Force were never replied to.

Applicant’s complete response 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 timely  not  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.  It  appears  the  applicant’s  spouse  had  three
opportunities with which to provide SBP coverage and  failed  to  take
advantage of any of them.  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 AFBCMR Docket Number BC-
2006-01227  in  Executive  Session  on  5  October  2006,  under   the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Apr 06, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 26 May 06
    Exhibit C.  Letter, SAF/MRBR, dated 2 Jun 06.
    Exhibit D.  Letter, Applicant, dated 22 Jun 06.



                                   MICHAEL K. GALLOGLY
                                   Panel Chair

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