RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-01570
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 26 NOVEMBER 2007
_________________________________________________________________
APPLICANT REQUESTS THAT:
The 24-month survival requirement in order for her to become entitled to a
Survivor Benefit Plan (SBP) annuity be waived.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her husband retired from the Air Force on 29 July 1994 [sic] and started
paying SBP premiums on the date of his retirement. After his death, she
was told she was not eligible to receive the SBP allowance. She believes
this to be an injustice because she was married to her husband at the time
of his death. She spoke with the SBP counselor and was told that she was
not eligible to receive the allowance and could not apply. She is a
foreign national and could not understand what she was being told. She did
not know what other actions to take or who to contact. The SBP counselor
did not make any other efforts to assist or advise her of the next steps to
take. She relied on the counselor’s advice and never received any
payments. Recently, she spoke with one of her husband’s friends and showed
him one of his retired pay statements. He told her that her husband was
making SBP payments and therefore she should have been receiving an annuity
after his death. The Defense Finance Accounting Systems (DFAS) office
confirmed that her husband had been paying the SBP premiums. She submitted
paperwork to DFAS to apply for an SBP allowance and was instructed to
submit an appeals package.
In support of her request, applicant provided a personal statement, her
application for SBP annuity with required attachments, a copy of her late
husband’s divorce decree, a copy of his death certificate, a copy of his
leave and earnings statement, and copies of various separation documents.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
According to the information provided by the Air Force office of primary
responsibility, the member was not married and declined SBP coverage prior
to his 1 July 1974 retirement. The applicant and the member were married
on 28 July 1976, but he did not notify the finance center of the change to
his martial status, or request SBP coverage be established on the
applicant’s behalf within the first year of their marriage. The member
submitted an election for spouse only SBP coverage based on full retired
pay under the open enrollment authorized by PL 101-189. The effective date
of his election was 1 February 1993; however, the election was voided by
his 29 July 1994 death. The decedent would have had to live until 1
February 1995 in order for the applicant to receive an SBP annuity. All
SBP premiums withheld from the decedent’s retired pay were refunded to the
applicant.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPTR recommends denial. DPPTR states there is no basis in law to
waive the two-year survival requirement; however, if the Board’s decision
is to grant relief, the record could be corrected to show the member
elected spouse only SBP coverage based on full-retired pay on 27 July 1977,
prior to the first marriage anniversary. DPPTR concludes approval should
be contingent upon recoupment of all applicable premiums the member would
have paid had he made the election at that time. Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant for
review and comment on 30 June 2006. As of this date, this office has
received no response (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. Sufficient relevant evidence has been presented to demonstrate the
existence of an error or injustice. After thoroughly reviewing the
evidence of record, the Board majority is persuaded that the former service
member’s records should be corrected in such a manner to make the applicant
eligible for an annuity under SBP. The Board majority finds the
applicant’s claim that she was miscounseled by the SBP representative and
the fact the former member survived 18 months of the 24-month survival
requirement to be the mitigating aspects of this case. The Board majority
is aware of the 24-month survival requirement but believes that the
changing of the former member’s SBP election date will comply with the
statutory requirement and afford the applicant appropriate relief.
Therefore, the Board majority recommends the service records be corrected
as indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT be corrected to show that on 27 July 1977, the former member
elected spouse only SBP coverage based on full-retired pay, naming
XXXXXXXXXXXXX, as the eligible beneficiary.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-2006-
01570 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
By a majority vote, the Board recommended approval of the application, Ms.
Kathy L. Boockholdt, voted to deny the applicants request and elected not
to submit a minority report.
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 16 May 2006, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPRT, dated 15 Jun 2006.
Exhibit C. Letter, SAF/MRBR, dated 30 Jun 2006.
MICHAEL K. GALLOGLY
Panel Chair
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