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AF | BCMR | CY2008 | BC-2007-03097
Original file (BC-2007-03097.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03097
            INDEX CODE:  137.00
            COUNSEL:  NONE
            HEARING DESIRED:  NOT INDICATED

_________________________________________________________________

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:

She has been denied an SBP annuity for years because she was told there  was
no record of her husband serving in the military.

In support of her request, applicant  provided  a  personal  statement,  her
application for SBP annuity with attachments, a copy of her husband’s  death
certificate, and a copy of her marriage certificate.

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 former service member and the applicant were married  on
13 Oct 57.  He retired on 1 Jul 70.  He did not elect  SBP  coverage  during
the initial enrollment period (1972-1974).  He  submitted  an  election  for
spouse coverage based on a reduced level  of  retired  day  during  an  open
enrollment period authorized by Public Law (PL) 97-35 (1 Oct  81  –  30  Sep
82).  The effective date of  his  election  was  28  Sep  82;  however,  the
election was voided by his 13 Jul 84 death.  The decedent would have had  to
live until 27 Sep 84 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/DPSIAR recommends denial.   DPSIAR  states  it  is  unfortunate  the
service member passed away before fulfilling the  survival  requirement  for
the SBP election he made.  He had the opportunity to elect  spouse  coverage
during the initial enrollment period, but failed to do so.  It has  been  23
years since the former  service  member’s  death.   The  applicant  has  not
provided an explanation for her  delay  in  seeking  a  correction  for  the
annuity.  Furthermore, there is no  basis  in  law  to  waive  the  two-year
survival requirement.

The AFPC/DPSIAR 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  for
review and comment within 30 days on 7  Dec  07.   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 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 an error or an injustice.  We took notice  of  the  applicant’s
complete submission in judging the merits of the  case.  However,  we  agree
with the opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has failed to sustain her burden of proof of the existence  of
an error or injustice.   Therefore,  in  the  absence  of  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 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 AFBCMR Docket Number  BC-2007-
03097 in Executive Session on 14 Feb 08, under the  provisions  of  AFI  36-
2603:

            Ms. Marcia Jane Bachman, Acting Panel Chair
            Mr. Alan A. Blomgren, Member
            Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, not dated, w/atchs.
      Exhibit B.  Letter, HQ AFPC/DPPRT, dated 15 Nov 07.
      Exhibit C.  Letter, SAF/MRBR, dated 7 Dec 07.




                 MARCIA JANE BACHMAN
                 Acting Panel Chair

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