RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-04015
INDEX CODE: 137.03
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
_
APPLICANT REQUESTS THAT:
He be disenrolled from the Survivor Benefit Plan (SBP).
________________________________________________________________
_
APPLICANT CONTENDS THAT:
He and his spouse were miscounseled by their SBP counselor in
regards to the pretax and pre-former spouse deduction
calculations. He would like to cancel his participation in the
SPB program.
In support of his application, applicant provides a copy of his
wife's DD Form 149, Application for Correction of Military
Record under the Provisions of Title 10, USC Code, Section 1552,
DD Form 2656, Data for Payment of Retired Personnel, and his SPB
counseling sheet.
Applicants complete submission, with attachments, is at Exhibit
A.
________________________________________________________________
_
STATEMENT OF FACTS:
The applicant was married on 10 October 2002 and made a valid
SBP election for spouse only coverage based on full-retired pay,
prior to his 1 August 2007 retirement. Since he elected maximum
spouse coverage, his spouses concurrence was not required.
________________________________________________________________
_
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial and states there is no evidence of
an error or injustice. The member's claim he was miscounseled on
the SBP deduction is without merit. Each person attends a one-
on-one SBP briefing given by an SBP counselor prior to their
retirement and while SBP counselors present facts and explain
the provisions of the program during the pre-retirement
counseling, members are ultimately responsible for making the
election that best meets their particular situation. The SBP
counselor provided a copy of the SBP Report on Individual
Personnel (RIP) the applicant had signed, acknowledging he
understood his options and the effects of his actions pertaining
to his SBP election. Division of retired pay varies from state
to state and each decree and property settlement is subject to
interpretation by local courts. Therefore, the SBP RIP does not
address division of retired pay. Nonetheless, SBP counselors are
trained to advise members that SBP premiums for former spouse
coverage usually reduce the amount subject to division of
retired pay, but spouse SBP premiums usually do not. Finally,
there is a strong presumption that administrators of the
military, like other public officers, discharge their duties
correctly, lawfully and in good faith. Approval of this request
would provide the applicant an opportunity not afforded to other
retirees; however, he may disenroll with his wife's written
concurrence, during the one-year period beginning 1 August 2009
as authorized by PL 105-85.
AFPC/DPSIAR's complete evaluation is at Exhibit B.
________________________________________________________________
_
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the evaluation and states he was
incorrectly briefed by the counselor on SBP. He is only asking
that the counselor be held accountable for mistakes in
information presented to him and his wife. The information
provided by the counselor was the main reason he signed up for
the program.
Applicant's complete response, with attachment, 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 filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. After a
thorough review of the evidence of record and applicant's
submission, we do not find his uncorroborated assertion that he
was miscounselled, in and by itself, sufficiently persuasive to
override the rationale provided by the Air Force office of
primary responsibility. Therefore, we agree with the opinion
and recommendation of the Air Force OPR and adopt the rationale
expressed as the basis for our decision that the applicant has
failed to sustain his burden of having suffered either an error
or injustice. We note that the OPR has provided the applicant
with an avenue in which he may disenroll from SBP with his
wife's written concurrence during the one-year period as
authorized by PL 105-85. In the interim however, and in the
absence of persuasive 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 an material error or an 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-
2007-04015 in Executive Session on 26 June 2008, under the
provisions of AFI 36-2603:
XXXXXXXXXXXXXXXXX, Panel Chair
XXXXXXXXXXXXXXXXX, Member
XXXXXXXXXXXXXXXXXXXX, Member
The following documentary evidence was considered in
connection with AFBCMR Docket Number BC-2007-04015:
Exhibit A. DD Form 149, dated 10 December 2007, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 20 Feb 08, w/atch.
Exhibit C. Letter, SAF/MRBR, dated 7 Mar 08.
Exhibit D. Applicant's response, dated 22 Mar 08, w/atchs.
XXXXXXXXXXXXXXX
Panel Chair
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DPPRT states that Public Law (PL) 99-145 requires spouses of married servicemembers to concur in writing, prior to the servicemember’s retirement, in SBP elections that provide less than full spouse coverage. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the 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...
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