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AF | BCMR | CY2007 | BC-2007-01450
Original file (BC-2007-01450.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01450
            INDEX CODE: 137.04
      xxxxxxxxxxx      COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  11 NOVEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected to  show  he  declined  Survivor  Benefit  Plan
(SBP) coverage and that the requirement  for  his  wife  to  concur  in  the
election be waived.

2.  The SBP premiums deducted from November 2006 to present be reimbursed.

3.  The legal fees he incurred be reimbursed.
_________________________________________________________________

APPLICANT CONTENDS THAT:

In February 2002, his wife was  diagnosed  with  a  brain  disease  that  is
causing atrophy in her brain.  His wife has lost most of  her  capabilities.
Although she is still mobile she is  very  unstable  with  greatly  hindered
communications skills.  His wife’s waiver election package  was  denied  due
to a lack of supporting documentation concerning  his  wife’s  capabilities.
He believes his case has been mishandled from  the  beginning  and  unjustly
decided on by those who demonstrate a lack of concern for  his  family.   He
has done everything he was asked to do  for  the  waiver  and  believes  his
family has been done wrong and seeks to make it right.

In support of his appeal, applicant provides a personal  statement,  a  copy
of his durable power of attorney, petition for guardianship, personal  will,
medical documents concerning  his  wife’s  condition  and  other  associated
documents regarding his request for waiver  of  spouse  concurrence  in  SBP
election.

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

_________________________________________________________________

STATEMENT OF FACTS:

The Military  Personnel  Database  System  reflects  the  applicant  retired
effective 1 November 2006 in the grade of master sergeant.

The remaining relevant facts pertaining to this application, extracted  from
the applicant's military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR recommends the application be denied.  DPPTR  states  that  on  7
June 2006, the applicant submitted  a  request  for  waiver  of  his  wife’s
concurrence based on her medical condition and provided a power of  attorney
(POA).  AFPC/JA  reviewed  the  applicant’s  request  and  opined  that  his
request be denied.  The applicant provided a Consent to the  Appointment  of
a Guardianship  order  from  the  Illinois  Circuit  Court,  appointing  him
guardian of his wife.  AFPC/JA again reviewed his waiver request and  stated
that there is a “direct conflict of interest in the  member  making  an  SBP
decision on his wife’s behalf” and determined that the original decision  to
deny should remain.  The AFPC/DPPTR complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  15
June 2007 for review and comment within 30 days.   As  of  this  date,  this
office has received no response.

_________________________________________________________________

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.  We have reviewed  the  available  evidence
pertaining to the applicant’s request that his records be corrected to  show
he  declined  SBP  coverage  and  that  the  requirement  for   his   wife’s
concurrence be waived.  His contentions  in  this  regard  are  duly  noted;
however, we agree with the Air Force offices of primary responsibility  that
have previously reviewed  his  request,  that  allowing  him  to  make  this
decision on his wife's behalf appears to create a conflict of  interest  and
is contrary to the intent of the  statutory  requirement  for  her  consent.
Therefore, it is our opinion that the provisions of Public Law  99-145  have
been appropriately applied.

4.  We have noted the applicant’s request for reimbursement  for  the  legal
fees he has incurred.  The law under which this  Board  operates  authorizes
the payment of monies due as a result of  a  correction  of  the  record  to
rectify an error and/or an injustice.   Therefore,  favorable  consideration
of this portion of his request is not within the Boards purview.

5.    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 issues  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-2007-01450
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  pertaining  to  Docket  Number  BC-2007-
01450 was considered:

    Exhibit A.  DD Form 149, dated 1 May 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 8 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Jun 07.





                                             KATHLEEN F. GRAHAM
                                             Panel Chair

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