RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-01092
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her husband's records be corrected to show that he elected spouse coverage
under the Survivor Benefit Plan (SBP) program.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her husband elected full spouse coverage under SBP. She and her husband
divorced in Sep 70, and he suspended SBP coverage. On 14 Feb 1975, she and
her ex-husband remarried. He attempted to have SBP premiums restarted in
Jan 80.
In support of her request, applicant submits copies of the SBP Election
Certificate, retirement order, certificate of marriage (24 Dec 47), divorce
decree, marriage license (14 Feb 75), and certificate of death.
Her complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and servicemember were married on 26 Dec 47. Member did not
enroll in the Retired Serviceman's Family Protection Plan (RSFPP) prior to
his 3 Nov 66 disability retirement. The parties divorced on 25 Sep 70 and
he elected child only SBP coverage based on full retired pay during the
initial SBP open enrollment period authorized by PL 92-425 (21 Sep 72 – 20
Mar 74). The applicant and member were married again on 14 Feb 75, however
he did not request SBP coverage be reestablished on the applicant's behalf
within the first year of their marriage, or during subsequent open
enrollment periods.
The SBP Election Certificate, provided by the applicant reflects he elected
spouse and child SBP coverage on 11 Jan 80; however, the election was
invalid because it was not completed during the authorized open enrollment
period of one year. The youngest child lost SBP eligibility due to age in
Jul 83. The servicemember died on 19 Apr 95.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSIAR recommends denial. The RSFPP was in effect until 20 Sep 72.
Members were briefed and required to make their RSFPP elections before
completing 18 years of service. Spouse notification was not required. The
laws controlling the RSFPP did not extend coverage to a spouse acquired
after the member's retirement. Less than 15 percent of the members retired
during existence of RSFPP were enrolled.
Public law, establishing SBP on 21 Sep 72, authorized an enrollment period
for members who were already retired to elect SBP coverage. Members who
were unmarried on the date of their retirement had one year to elect SBP
spouse coverage. Members were advised by direct mail of their eligibility
to make an election.
The service member had three opportunities to elect SBP coverage for the
applicant, but failed to do so. SBP is similar to commercial life
insurance in that an individual must elect to participate during the
opportunities provided by law and pay the associated premiums in order to
have coverage.
DPSIAR opines providing entitlement to the applicant based on the evidence
presented would be inequitable to members who participated when eligible
and other widows whose sponsors chose not to participate.
The complete DPSIAR 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 23 May
08 for review and comment within 30 days. As of this date, this office has
received no response (Exhibit C).
_________________________________________________________________
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 took notice of the applicant’s
complete submission in judging the merits of the case; however, we agree
with the opinion and the recommendation of the Air Force office of primary
responsibility and adopt its rationale as the basis for our conclusion that
the applicant has not been the victim of an error or injustice. Therefore,
in the absence of evidence to the contrary, we find no 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 probable 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 this application in Executive
Session on 31 July 2008, under the provisions of AFI 36-2603:
Mr. Michael K. Gallogly, Panel Chair
Mr. Alan A. Blomgren, Member
Ms. Yvonne T. Jackson, Member
The following documentary evidence for AFBCMR Docket Number BC-2008-01092
was considered:
Exhibit A. DD Form 149, dated 15 Mar 08, w/atchs.
Exhibit B. Letter, HQ AFPC/DPSIAR, dated 12 May 08.
Exhibit C. Letter, SAF/MRBR dated 23 May 08.
MICHAEL K. GALLOGLY
Panel Chair
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His record contains a copy of a 28 Apr 93 letter from DFAS-DE advising him, among other things, that the 12 Feb 93 open enrollment election he submitted was “invalid” because block 10 did not indicate the base amount upon which he wished to establish coverage. His open enrollment election form contained what appears to be the monthly SBP premium amount he thought would be collected from his retired pay if he elected coverage on a reduced level of retired pay. Exhibit C. Letter, SAF/MRBR...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.
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Prior to the servicemember’s 1 October 1963 retirement, he was married and elected spouse and child RSFPP coverage, Option 4 - that allowed the member to terminate RSFPP premium payments in the event the beneficiary lost eligibility. We find no evidence he attempted to elect SBP coverage for the applicant during any of the four open enrollment periods provide by law. Regardless, it appears the servicemember made no attempt to elect SBP coverage for the applicant when he was eligible during...
There were no provisions in the law at that time to notify spouses if the servicemember did not elect coverage. There is no evidence that the servicemember elected SBP during any of the authorized open enrollments. Exhibit C. Letter, SAF/MRBR, dated 26 Apr 02.
AF | BCMR | CY2006 | BC-2005-02539
PL 92-425, which established the SBP on 21 Sep 72, authorized an 18- month enrollment period (21 Sep 72 - 20 Mar 74) for retired members to elect SBP coverage, but were not required to return an SBP election form in order to decline coverage. RSFPP participants could have terminated previous RSFPP coverage, or retained it in addition to a new SBP election. There were no provisions in the laws during these open enrollment periods requiring the Services to notify spouses of retired members...
AF | BCMR | CY2010 | BC-2010-02569
The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. DPSIAR states the law in effect at the time of the applicants divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse eligibility; therefore, the fact the divorce decree mentioned the SBP does not provide standing to establish SBP coverage on the applicants behalf. We took notice of the applicant's...
AF | BCMR | CY2005 | BC-2005-00953
Subsequently, Public Laws (PLs) 97-35, 101-189, and 105-261 authorized additional SBP open enrollment periods (1 Oct 81 – 30 Sep 82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29 Feb 00, respectively) so that retirees could elect or increase SBP coverage. Similarly, 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 for her when he was eligible to do so. Exhibit C. Letter,...
AF | BCMR | CY2004 | BC-2003-00708
In support of her request, applicant submitted a copy of the former service member’s Death Certificate; a copy of their divorce decree; and copies of the former service member’s DD Form 214 (Armed Forces of the United States for Report of Transfer or Discharge), retirement order, dated 19 Feb 70, and documents associated with his retirement for disability. _________________________________________________________________ AIR STAFF EVALUATION: HQ AFPC/DPPTR reviewed this application and...
AF | BCMR | CY2004 | BC-2004-02399
___________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his retirement from the Air Force he elected child coverage under the SBP. If his daughter’s disability was diagnosed while she was otherwise eligible, the member could have elected coverage on her behalf during the initial open enrollment; however, there is no evidence such an election was submitted. We believe the applicant would have elected to provide coverage for his daughter...
AF | BCMR | CY2007 | BC-2007-01439
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. 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. It is possible that since the premiums were still being deducted from the member’s retired pay after the...