RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-04144
            INDEX CODE:  137.04
            COUNSEL:

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her husband’s records be corrected to reflect that he  elected  spouse  only
coverage under the Survivor Benefit Plan (SBP) to  entitle  her  to  an  SBP
annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her  husband  often  told  her  that  upon  his  death,  she  would  be  the
beneficiary of his Air Force  pension;  therefore,  she  had  no  reason  to
question whether he had taken the necessary steps to ensure she received  an
SBP annuity.  When he died, she was shocked and dismayed to  find  out  that
she would not receive an annuity because he had never made an election.

She is 79 years of age and would have received $2,098 a  month.   She  knows
that if her request is granted, she would be required  to  pay  the  benefit
premiums back to 1986.  She  further  realizes  that  the  amount  recovered
would bear interest and that she might never live  to  collect  any  of  the
annuities.

In support of her request, the applicant submits  copies  of  her  husband’s
certificate of  death,  her  marriage  certificate  and  her  identification
cards.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former service member retired on 1 May 65.  His  pre-retirement  marital
status cannot be verified; however, there  is  no  evidence  he  returned  a
valid SBP election during the 1972 or 1981 open enrollment periods.  He  and
the applicant married on 15 Apr 85, but he did not request SBP  coverage  be
established on her behalf within the first year of marriage, nor during  any
of the authorized open enrollments.

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:

HQ AFPC/DPSIDR recommends denial.  DPSIDR states  the  Retired  Serviceman’s
Family Protection Plan (RSFPP) was in effect until 20 Sep 72.  Members  were
briefed and required to make their elections before completing 18  years  of
service;  however,  spouse  notification  was  not   required.    The   laws
controlling the RSFPP coverage to a spouse was acquired after  the  member’s
retirement.   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.  If they do not elect coverage  within  the  first
year, they are only authorized to make an election during a Public Law  (PL)
open enrollment period which is mandated by Congress.

DPSIDR notes survivors of  military  retirees  may  continue  to  receive  a
portion of the sponsor’s retired pay only if the member  was  a  participant
in one of the annuity plans offered by  the  Department  of  Defense  (DoD).
There is no legal authority for  the  Air  Force  to  pay  the  survivor  an
annuity if the member did not choose to provide coverage on  the  survivor’s
behalf.

The complete DPSIDR evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reiterates many of the  aforementioned  contentions.
He  opines  the  comments  provided  in  the  excerpted  letter   from   the
applicant’s son substantiate the claim that her spouse elected SBP  coverage
for her.  He opines the comments lend credence to her belief that  a  proper
election had been made.

Counsel’s complete submission, with attachment, is at 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.
Additionally, we note counsel’s argument the applicant was  led  to  believe
her husband had elected SBP coverage and that  she  would  receive  benefits
upon his death.  Even accepting this as true, we  are  still  not  persuaded
the applicant is the victim of an error  or  injustice  caused  by  the  Air
Force.  While her  situation  is  certainly  regrettable,  the  evidence  of
record leads us to conclude that reasonable diligence was not  exercised  on
the part of the applicant, the deceased service member,  or  other  involved
family members to insure she would be entitled to benefits upon the  service
member’s death.  Therefore, in the absence of  persuasive  evidence  to  the
contrary, we find no basis to recommend granting the relief sought  in  this
application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_______________________________________________________________

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 this application in  Executive
Session on 8 Sep 10, under the provisions of AFI 36-2603:

      , Vice Chair
      , Member
      , Member

The following documentary evidence was considered in AFBCMR BC-2009-04144:

    Exhibit A.  DD Form 149, dated 30 Oct 09, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 22 Dec 09.
    Exhibit C.  Letter, SAF/MRBR, dated 8 Jan 10.
    Exhibit D.  Letter, Counsel, dated 15 Jan 10, w/atch.



                                   Vice Chair