RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01117
                                             INDEX CODE:  137.04
      XXXXXXXXXXXXXXXXXXXXXXX           COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  9 October 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

Corrective action be taken to reinstate the Survivor Benefit Plan  (SBP)  on
her behalf.

________________________________________________________________

APPLICANT CONTENDS THAT:

She is the widow of a deceased, retired Air Force member.

She was her late husband’s caretaker and guardian for  over  50 years  after
he became ill, and made major decisions for them and their family.

He paid SBP premiums for over 20 years, and  it  was  not  his  intent  that
these premium deductions be stopped.  If they  were  stopped,  it  was  done
without their apparent knowledge of what exact changes  were  taking  place.
There is no apparent documentation in  their  records  of  there  being  any
clear advice on this matter of whether to continue payment  of  premiums  or
what they meant.

Had she known about this earlier, she  would  have  corrected  it.   She  is
currently  under  medical  care  for  the  effects  of  strokes  and  memory
impairment, and this  is  her  only  source  of  income  other  than  Social
Security.

In support of her appeal, she has submitted a copy  of  her  late  husband’s
death certificate, dated 15 March 2007.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant and her late husband were married on 28 July 1946 and  he  retired
on 1 May 1956.   The  applicant  was  appointed  his  legal  guardian  on  3
December 1956.  Acting on her late  husband’s  behalf,  she  elected  spouse
only SBP coverage based on full retired pay  during  the  initial  SBP  open
enrollment period, 21 September 1972 - 20 March 1974.

An  SBP  election  may  not  be  arbitrarily  terminated  as  long  as   the
beneficiary remains eligible.   Public  Law  (PL)  96-402,  dated  9 October
1980, permits members who have been rated 100% disabled  by  the  Department
of Veterans Affairs (VA) for five  continuous  years  immediately  following
retirement, or ten consecutive years if  rated  100%  after  retirement,  to
withdraw from SBP.  These members are permitted to  withdraw  because  their
deaths will be presumed to be service connected; therefore, their  surviving
spouses will be entitled to monthly Dependency  and  Indemnity  Compensation
(DIC) payments from the VA.  DIC reduces an SBP  annuity  dollar-for-dollar.
If a member withdraws under this provision, there is no immediate refund  of
premiums; however, applicable spouse premiums may be refunded to the  spouse
following the member’s death.  To withdraw from SBP  under  this  provision,
the member, or legal guardian acting on his or her  behalf,  must  submit  a
written request to the Defense Finance and Accounting  Service  (DFAS)  with
the beneficiary’s notarized consent.   Withdrawal  is  effective  the  month
following DFAS receipt of the request.

In 1974, the VA awarded applicant’s  husband  100%  disability  compensation
due to a service connected nervous condition.  He continued to  receive  Air
Force retired pay, and SBP  premiums  continued  to  be  deducted  from  his
retired pay, until March 1993.  On 18 January  1993,  applicant,  acting  in
her legal capacity as her husband’s guardian, submitted  a  written  request
to DFAS requesting suspension  of  SBP  premiums  being  deducted  from  his
retired pay, stating that she had given the matter  much  thought  and  felt
this would be in their best interest.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRT recommends denial as there is  no  error  or  injustice  in  this
case.  The applicant’s claim that it was not her husband’s intent  that  SBP
premiums be stopped is without  merit.   The  applicant,  who,  by  her  own
admission, made all major decisions on  her  husband’s  behalf  since  1956,
initially elected SBP coverage on her behalf and  later  submitted  a  valid
request to withdraw from the Plan.  It was her responsibility to  understand
the impact and effects of her actions and she had ample time  and  resources
to  obtain  additional  information.   It  would  be  inequitable  to  other
retirees similarly situated to grant her request.

If the Board’s decision is to  grant  relief,  the  applicant’s  March  1993
request on behalf of the decedent to  withdraw  from  SBP  under  PL  96-402
should be voided, and approval should be contingent  upon  recovery  of  all
appropriate SBP costs.

The AFPC/DPPRT evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded on 11 June  2007.   She  stated  that  she  did  not
believe  that  she  ever  submitted  a  signed,  written  request  to   DFAS
requesting suspension of SBP premiums  being  deducted  from  her  husband’s
retired pay, and requested that she be furnished a copy of  such  statement,
which was mailed to her on 19 June 2007.

Applicant’s complete response is at Exhibit E.

________________________________________________________________

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.  After a thorough review  of  the  evidence
of record  and  applicant’s  submission,  we  are  not  persuaded  that  the
deceased member’s records should be altered so  that  his  surviving  spouse
would be eligible to receive an SBP annuity.   Applicant’s  contentions  are
duly noted; however, we do not find these assertions, in and by  themselves,
sufficiently persuasive to  override  the  rationale  provided  by  the  Air
Force.  The applicant, who, by her own admission, made all  major  decisions
on her husband’s behalf since 1956, initially elected SBP  coverage  on  her
behalf and later submitted a valid request to withdraw from  the  Plan.   It
was her responsibility to understand the impact and effects of  her  actions
and she had ample time and resources to obtain additional  information.   We
therefore agree with the recommendations of the  Air  Force  and  adopt  the
rationale expressed as the basis for our decision  that  the  applicant  has
failed to sustain her burden of  having  suffered  either  an  error  or  an
injustice.  In view of the above  and  absent  persuasive  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue(s)
involved.   Therefore,  the  request  for  a  hearing   is   not   favorably
considered.

________________________________________________________________

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-2007-01117
in Executive Session on 26 September 2007, under the provisions of  AFI  36-
2603:

                       Ms. Kathleen F. Graham, Panel Chair
                       Ms. Janet I. Hassan, Member
                       Ms. Renee M. Collier, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Mar 07, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRT, dated 10 May 07.
    Exhibit D.  Letter, SAF/MRBR, dated 17 May 07.
    Exhibit E.  Letter, Applicant, dated 9 Jun 07.
    Exhibit F.  Letter, AFBCMR, dated 19 Jun 07.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair