Search Decisions

Decision Text

AF | BCMR | CY2010 | BC-2009-04138
Original file (BC-2009-04138.doc) Auto-classification: Denied

                            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

Similar Decisions

  • AF | BCMR | CY2005 | BC-2005-02125

    Original file (BC-2005-02125.doc) Auto-classification: Approved

    The member elected spouse only coverage based on full retired pay during the Plan’s initial enrollment period authorized by Public Law (PL) 92-425. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states this situation started with his 11 Feb 05 request to DFAS to obtain cost and facts as to whether he could enroll his wife in the military SBP and CSRS SBP. ...

  • AF | BCMR | CY2010 | BC-2009-04144

    Original file (BC-2009-04144.doc) Auto-classification: Denied

    The Public Law (PL) which established the SBP on 21 Sep 72 authorized an enrollment period for members, who were already retired at that time, to elect SBP coverage. Members who were unmarried on the date of retirement have one year to elect SBP coverage for the first spouse acquired after that date. _______________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material...

  • AF | BCMR | CY2012 | BC-2012-00429

    Original file (BC-2012-00429.pdf) Auto-classification: Denied

    _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial, indicating there is no evidence of an error or injustice. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She was not provided or informed on the law and requirements of SBP. Had she been informed or provided the information on the requirements of the law pertaining to SBP she would have been able to make a...

  • AF | BCMR | CY2006 | BC-2006-03676

    Original file (BC-2006-03676.doc) Auto-classification: Approved

    The member’s widow is eligible to receive an SBP annuity of $412, but she has not submitted an application to date. A complete copy of the Air Force evaluation is at Exhibit B. Applicant’s complete response, with attachments, is at Exhibit D. The widow of the service member indicated in a statement dated 25 Jan 06, that she recently completed and returned some forms sent to her by DFAS-CL.

  • AF | BCMR | CY2012 | BC-2012-04626

    Original file (BC-2012-04626.txt) Auto-classification: Approved

    ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, stating, in part, there is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent's record be corrected to reflect on 1 Feb 94, he elected to change SBP spouse to former spouse coverage based on full retired pay, naming the applicant as the former spouse beneficiary. Considering the applicant failed to execute a deemed...

  • AF | BCMR | CY2012 | BC-2012-03982

    Original file (BC-2012-03982.txt) Auto-classification: Denied

    The former service member may file and election change or the former spouse may request the service member be deemed to make an election on his or her behalf. In the latter case, the former spouse must provide legal documentation the service member agreed, or the court ordered the service member, to establish former spouse coverage. She has not provided any evidence showing the former service member made an election for former spouse coverage within one year of their divorce as required by law.

  • AF | BCMR | CY2013 | BC-2012-02486

    Original file (BC-2012-02486.pdf) Auto-classification: Denied

    If the member fails to elect SBP coverage for an eligible beneficiary within the time prescribed by law, coverage may be provided only in the event Congress authorizes open enrollment. He failed to submit a valid request to elect SBP coverage on the applicant’s behalf within the time prescribed by law. It is the member’s right and responsibility to elect SBP coverage for a spouse acquired after retirement.

  • AF | BCMR | CY2012 | BC-2012-01307

    Original file (BC-2012-01307.pdf) Auto-classification: Denied

    If neither the member nor the spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter. Even though a member fails to notify DFAS—Cleveland (DFAS-CL) of the divorce and continues to pay SBP premiums afterword, the former spouse is not eligible for annuity payments upon the member’s death. However, should the applicant provide a notarized statement from the deceased former member’s widow relinquishing her...

  • ARMY | BCMR | CY2012 | 20120000030

    Original file (20120000030.txt) Auto-classification: Denied

    He elected participation in the Reserve Component SBP (RCSBP) for spouse only coverage based on the full amount under Option C (Immediate coverage). On 15 August 2011, by letter, a DFAS official notified the applicant's Member of Congress that: * Entitlement to retired pay terminates on the date of the retiree's death * The Arrears of Pay (AOP) include unencumbered amounts due to the deceased member * An amount of $752.40 was mailed to the applicant on 1 September 2010 for his AOP from 1 to...

  • AF | BCMR | CY2014 | BC 2014 02386

    Original file (BC 2014 02386.txt) Auto-classification: Denied

    In support of her request, the applicant provides a personal statement, copies of the former member’s death certificate, divorce decree, Separation and Property Settlement Agreement, marital status affidavit and various other documents associated with her request. None of the documents the applicant provided (Separation and Property Agreement or QDRO) had language that would entitle her to deem former spouse SBP coverage. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her attorney submitted...