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AF | BCMR | CY2010 | BC-2009-04619
Original file (BC-2009-04619.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-04619

            COUNSEL:  NONE

            HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His termination of  coverage  under  the  Survivor  Benefit  Plan  (SBP)  be
removed.

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  When he  requested  termination  of  his  SBP  coverage,  there  was  no
termination of premiums based on age  or  any  provision  to  stop  premiums
after a certain number had been paid.

2.  His wife is not eligible for  Social  Security  benefits;  therefore  he
believes his request for termination is nullified.

3.  He has been diagnosed with lung cancer and  has  been  taking  radiation
treatments.

In  support  of  his  appeal,  the  applicant  provides  copies  of  medical
documents related to his illness.

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

________________________________________________________________

STATEMENT OF FACTS:

Defense Enrollment Eligibility Reporting System (DEERS) records reflect  the
applicant and his spouse were married on 29  January  1968  and  he  elected
spouse and child coverage based on full retired pay  prior  to  his  1  July
1981 retirement.  On 16 April 1999, the applicant submitted a valid  request
to the Defense Finance Accounting Service-Cleveland (DFAS-CL)  under  Public
Law 105-85 to terminate  his  SBP  coverage.   His  wife  concurred  in  the
request and the applicant’s SBP coverage  was  terminated  effective  5  May
1999.

Public Law 105-85, 18 November 1997, authorized members,  who  were  retired
more than two years as of 17 May 1998, a one-year  open  enrollment  period,
during which they could have voluntarily  discontinued  their  participation
in the SBP.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIAR recommends denial of the  applicant’s  request.   To  allow  the
applicant an opportunity to restore his SBP coverage  would  be  inequitable
to other retirees similarly situated, and is not justified by the intent  of
the law or the evidence presented.

Public Law 108-375, 28 October 2004, established the phased  elimination  of
the Social Security  Offset  (SSO).   The  SBP  originally  was  a  two-tier
program, paying the surviving spouse 55 percent of the  base  amount  before
age 62 (when a surviving spouse normally  begins  to  draw  Social  Security
payments), and a reduced amount thereafter.  On 1 April 2008,  the  SSO  was
fully eliminated.

While it is unfortunate the applicant didn’t like SSO  and  allegedly  based
his decision to terminate SBP coverage on that  one  feature,  the  DD  Form
2656-2, Survivor Benefit  Plan  (SBP)  Termination  Request,  he  completed,
stressed the potential impact of his disenrolling and included  a  statement
directly above his signature that reads “I further understand  that  once  I
discontinue SBP, I cannot reenter the Plan.”

The complete AFPC/DPSIAR evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response the applicant states that his request for reinstatement  was
prompted by the by-product of the changes on the rules introduced recently:

      1.  Contributions stop at age 70.

      2.  The number of quarters paid complete.

At the  time  of  his  termination  request,  SBP  required  a  lifetime  of
contributions,  only  stopping  when  he  or  his  wife   died.    Continued
participation at that time was a burden on the  family’s  limited  finances;
otherwise they would have continued making payments.

He would appreciate it very much if the Board would remove  the  termination
request so he could have some benefit.  He was diagnosed with cancer,  which
he got from his service in Vietnam.

The applicant’s complete response is at Exhibit E.

________________________________________________________________

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.  While we are  not
unsympathetic toward the former member's medical condition, in view  of  the
above, we find no basis on  which  to  favorably  consider  the  applicant’s
request.

________________________________________________________________

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 15 Sep 10, under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered in  AFBCMR  Docket  Number
BC-2009-04619:

    Exhibit A.  DD Form 149, dated 10 Dec 09, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 19 Feb 10.
    Exhibit C.  Letter, SAF/MRBR, dated 5 Mar 10.
    Exhibit D.  Letter, Applicant, DATED 2 Apr 10.




                                   Panel Chair

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