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AF | BCMR | CY2009 | BC-2008-02577
Original file (BC-2008-02577.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-02577
            INDEX CODE:  137.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be allowed  to  terminate  her  spouse  and  child  coverage  under  the
Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was in the correct window to terminate SBP,  but  was  given  the  wrong
form  by  personnel  at  the  Minot  AFB  Military  Personnel  Flight.   The
incorrect form was sent on 25 February 2008.  The correct form was  sent  on
12 May 2008.

In support of her request, the applicant provided a  copy  of  her  DD  Form
2656, Data for Payment  of  Retired  Personnel,  DD  Form  2656-2,  Survivor
benefit Plan (SBP) Termination  Request,  and  a  letter  from  the  Defense
Finance and Accounting Service (DFAS) Retired and Annuity Pay Office.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was married and elected spouse and child  SBP  coverage  based
on a reduced level of retired pay prior to her 1 February 2005 retirement.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIAR  recommends  denial.   DPSIAR  states  the  applicant’s  husband
concurred with her  SBP  election.   However,  the  SBP  counselor  did  not
properly witness  her  husband’s  concurrence,  invalidating  the  election.
Nevertheless, DFAS-CL erroneously established the requested coverage  versus
full spouse coverage as required by law.  The applicant became  eligible  to
disenroll between  1  February  2007  and  31 January  2008,  but  documents
provided by the applicant show that her first attempt to disenroll from  the
SBP was made 25 days after the end of the one-year period.

The applicant’s claim that she attempted to disenroll from  the  SBP  within
the one-year window is without merit, as she stated she did not contact  the
MPF until 25 February 2008.  Even though the  incorrect  form  was  sent  to
DFAS-CL, her termination request would not have been  accepted  because  PL-
105-85 contains no provision for waiving or extending  the  one-year  period
authorized  to  terminate  participation.   Furthermore,  item  32  on   the
election form, which the applicant signed prior to her retirement,  contains
a specific statement that retiring members have been counseled that SBP  can
be terminated with the spouse’s written concurrence, within one  year  after
the second anniversary of  commencement  of  retired  pay.   Providing  this
applicant additional time and opportunity  to  terminate  her  SBP  coverage
would be inequitable to other retirees in  similar  situations  and  is  not
justified by the facts.

While the applicant may have been provided  an  erroneous  form,  PL  105-85
contains no  waiver  of  the  one-year  period  in  which  participants  may
arbitrarily terminate SBP coverage.

The complete DPSIAR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 August 2008, a copy of the evaluation was forwarded to  the  applicant
for review and comment within 30 days (Exhibit C).  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 an error or injustice.  The applicant’s  contentions  are  duly
noted; 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 not been the victim  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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or injustice; the application  was  denied  without  a
personal appearance; and 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-2008-
02577 in Executive Session on 2 October 2008, under the  provisions  of  AFI
36-2603:

                 Mr. Alan A. Blomgren, Panel Chair
                 Ms. Jan Mulligan, Member
                 Mr. James G. Neighbors, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 7 July 2008, w/atchs.
   Exhibit B.  Letter, AFPC/DPSIAR, dated 4 August 2008.
   Exhibit C.  Letter, SAF/MRBR, dated 22 August 2008.





                 ALAN A. BLOMGREN
                 Panel Chair

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