RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01439
            INDEX CODE:  137.04

            COUNSEL:  NONE
            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  7 NOVEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show he elected coverage  for
her under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband filled out the necessary forms to change the SBP beneficiary  in
1990, when they were married.  Her husband’s ex-spouse  died  in  May  2000.
Money was continually taken from his pay until his death in 2006.

In support of her request, applicant provided a copy of her husband’s  death
certificate and an SBP Fact Sheet.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Microfiche records produced by the Air Force Accounting and  Finance  Center
(AFAFC) from Dec 78 (DPPRT’s oldest retired pay records) reflect that  prior
to the member’s 1 Aug 69 retirement; he was married and elected  spouse  and
child Retired Serviceman’s Family Protection  Plan  (RSFPP)  coverage  (with
option 4).  The record reflects  the  member  did  not  elect  SBP  coverage
during the initial enrollment.  The youngest child lost eligibility  to  the
RSFPP Jul 81.  The parties divorced on 5  Jul  83,  but  RSFPP  premiums  of
approximately $63 were erroneously deducted from the  member’s  retired  pay
even though he had  no  eligible  spouse  beneficiary.   Defense  Enrollment
Eligibility Reporting System (DEERS) records show the decedent  married  the
applicant on 6 Mar 90.  There is no evidence he elected SBP coverage  during
either of the two open enrollment periods which occurred after his  marriage
to the petitioner.  The  member  had  several  opportunities  to  elect  SBP
coverage before his 11 Oct 06 death.  Had the member  elected  SBP  coverage
based on full retired pay, the monthly cost would  have  been  approximately
$157 at the time of his death and the annuity would have been no  less  than
$1,335.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial, stating there is no evidence  of  error  or
injustice on the part of the Air Force.

Retired Serviceman’s Family Protection Plan (RSFPP) was in effect  when  the
member retired.  Members were briefed  and  required  to  make  their  RSFPP
elections before completing 18 years of  service.   Coverage  could  not  be
transferred to another person upon the death  or  divorce  of  the  original
beneficiary.  Option  4  allowed  the  member  to  terminate  RSFPP  premium
payments in the event the beneficiary lost eligibility.

DPPRT further stated they cannot determine the  reason  for  the  decedent’s
failure to advise the finance center of his 1983 divorce.  The decedent  may
have mistakenly believed that the  applicant  was  eligible  to  receive  an
RSFPP annuity upon his death since the monthly premiums continued  following
their marriage.  Unfortunately, his belief had no basis in fact or  law  and
the Air Force has no authority  to  pay  an  RSFPP  annuity  to  his  widow.
Furthermore, the Air Force may not pay  an  SBP  annuity  to  the  applicant
because the member retired before the implementation of the SBP and  he  did
not choose to provide SBP coverage on her behalf.  The  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.

However, if the Board’s decision is to grant relief, the  decedent’s  record
should be corrected to show he elected SBP spouse  only  coverage  based  on
full retired pay effective 21 Sep 72 under  the  provisions  of  PL  92-425;
concurrently  terminated  his  RSFPP  coverage;  his  former   spouse   lost
eligibility on 6 Jul 83;  and  the  applicant  became  the  eligible  spouse
beneficiary effective 5 Mar 91.  Approval  should  be  contingent  upon  the
recovery of the additional premiums that would have  been  deducted  if  the
member had made these changes.

The DPPRT evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She and her husband had the understanding  that  the  beneficiary  had  been
changed to reflect her name as the sole beneficiary when her  husband’s  ex-
wife passed away in 1998 [sic].  Her husband filled  out  what  he  believed
were the proper forms to change the beneficiary.  Premiums  on  that  policy
were never interrupted and her name was on the forms.

If, as you claim, there was no beneficiary listed, then  why  were  premiums
taken out of her husband’s account  every  month  from  1998  through  2007.
According to your own website, upon death of beneficiary  –  premiums  stop.
Since they did not, she and her husband  were  still  under  the  assumption
that their paperwork was in order and that she was the beneficiary.

Furthermore, if it is found that she is not entitled to full benefits  under
this policy, she should be reimbursed all payments erroneously taken out  of
her husband’s account from 1998 through 2007 plus interest.

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 filed.

3.  Sufficient 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.  Notwithstanding  the
opinion  provided  by  HQ  AFPC/DPPRT,  after   thoroughly   reviewing   the
circumstances of this case, it is our opinion the applicant  should  receive
the SBP annuity.  It is possible that since the premiums  were  still  being
deducted from the member’s retired pay after the death of his  first  spouse
and continued following his marriage to the applicant, that he believed  his
current spouse was the beneficiary of the SBP annuity.  We are persuaded  by
the evidence presented that it  was  the  member’s  intent  to  provide  his
spouse with the  SBP  annuity.   Therefore,  we  recommend  the  records  be
corrected to the extent 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:

      a.  He elected Survivor Benefit Plan spouse only  coverage,  based  on
full retired pay effective  21  September  1972,  under  the  provisions  of
Public Law 92-425, and  concurrently  terminated  his  Retired  Serviceman’s
Family Protection Plan (RSFPP) coverage.

      b.  Spouse coverage was suspended 6 July  1983,  and  spouse  coverage
was reinstated on the first anniversary of his marriage  to  xxxxxxxxxxxxxx,
on 6  March  1991.   Appropriate  adjustments  for  full  credit  for  RSFPP
premiums and full recovery of retroactive SBP premiums apply.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2007-
01439 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

All members voted to correct the records,  as  recommended.   The  following
documentary evidence pertaining to  Docket  Number        BC-2007-01439  was
considered:

     Exhibit A.  DD Form 149, dated 14 Apr 07, w/atchs.
     Exhibit B.  Letter, AFPC/DPPRT, dated 22 May 07.
     Exhibit C.  Letter, SAF/MRBR, dated 1 Jun 07.
     Exhibit D.  Letter, Applicant, dated 29 Jun 07.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair



AFBCMR BC-2007-01439




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to [APPLICANT], be corrected to show that:

            a.  He elected Survivor Benefit Plan spouse only coverage,
based on full retired pay effective 21 September 1972, under the provisions
of Public Law 92-425, and concurrently terminated his Retired Serviceman’s
Family Protection Plan (RSFPP) coverage.

            b.  Spouse coverage  was  suspended  6  July  1983,  and  spouse
coverage was  reinstated  on  the  first  anniversary  of  his  marriage  to
xxxxxxxxxxxxxxxxxx, on 6  March  1991.   Appropriate  adjustments  for  full
credit for RSFPP premiums and full  recovery  of  retroactive  SBP  premiums
apply.




            JOE G. LINEBERGER
            Director
                                              Air Force Review Boards
Agency