RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-04138
INDEX CODE: 137.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her husband’s records be corrected to reflect that he elected full spouse
coverage under the Survivor Benefit Plan (SBP) to entitle her to an SBP
annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
A letter from her husband dated 1 Nov 94, to the Defense Finance and
Accounting Service-Cleveland (DFAS-CL) requests she be enrolled in SBP with
maximum coverage. Her congressman confirmed the request. She is 75 years
of age, has many medical issues and receives a monthly social security
check in the amount of $1,100. She and her spouse shared a 20-year
relationship to include a 15 year engagement. She cared for him at home
during the end of his life and she has not remarried.
In support of her request, the applicant submits copies of her spouse’s
death certificate, a letter to DFAS-CL, a letter from Congress, her
spouse’s AF Form 548, Reserve Retired Pay Order and her marriage
certificate.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The decedent’s prior marital and family history is unavailable; however,
records indicate the member declined SBP coverage prior to receiving
retired pay at age 60 (30 Sep 78). The former service member and the
applicant were married on 22 Oct 94. DFAS-CL received a letter from the
former service member on 4 Nov 94, requesting SBP coverage be established
on behalf of the applicant; however, he died on 20 Mar 95, seven months
before the end of their first year of marriage.
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:
DPSIDR recommends denial. DPSIDR states survivors of military retirees may
continue to receive a portion of the sponsor’s retired pay only if the
member was a participant in the SBP. The law contains no automatic
enrollment provision for a spouse acquired after retirement unless spouse
coverage had been previously elected, then suspended due to the death or
divorce of the previous spouse. The SBP is similar to a commercial
insurance program in that it requires the member to enroll and pay
associated premiums in order to provide an annuity to survivors.
DPSIDR notes a member who is unmarried at retirement may elect coverage for
the first spouse acquired after retiring. However, the election must be
made before the first anniversary of that marriage. If an election is not
made before the first anniversary, SBP coverage for that person or another
person of that category may be elected only if Congress authorizes an open
enrollment period.
DPSIDR notes the applicant was not married to the former service member for
one-full year prior to his death and there is no provision that authorizes
waiver of that criterion, absent the birth of a child before the first
anniversary of the marriage. It would be contrary to the letter and intent
of the law, as well as inequitable to other survivors similarly situated,
to approve the applicant’s request. Furthermore, she offers no explanation
for delaying over 14 years since the member’s death in seeking correction.
DPSIDR states there is no evidence of error or injustice nor any basis in
law to grant the relief sought in this case.
The complete DPSIDR 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 5 Feb
10, for review and comment within 30 days. As of this date, this office
has received no response (Exhibit D).
_________________________________________________________________
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 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 persuasive 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 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 BC-2009-04138 in
Executive Session on 26 Aug 10, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 30 Oct 10, w/atchs.
Exhibit B. Letter, HQ AFPC/DPSIAR, dated 13 Jan 10.
Exhibit C. Letter, SAF/MRBR, dated 5 Feb 10.
Panel Chair
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