RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00925 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her spouse’s records be corrected to reflect he made a timely 
election for spouse coverage under the Survivor Benefit Plan 
(SBP). 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

At the time of her husband’s retirement he was suffering from 
religious delusions and hallucinations as a result of a mood 
disorder and Post Traumatic Stress Disorder (PTSD). The service 
member was not mentally competent to make a rational decision. 
The applicant does not recall ever receiving notice from the Air 
Force of the service member declining SBP coverage for her. 

 

In support of her request, she provides copies of documents 
extracted from the former service member’s military personnel 
records, her Affidavit, and a Superior Court of California, 
County of Solano, Order for Renewal of Lanterman-Petris Short 
(LPS) Conservatorship. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 29 Aug 60, the service member contracted his initial 
enlistment in the Regular Air Force. He served as an 
Administration Superintendent. He retired on 1 Oct 80. He 
served 20 years, 1 month and 2 days of active service. 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force, which is attached at Exhibit B. 

 

_________________________________________________________________ 

 


AIR FORCE EVALUATION: 

 

AFPC/DPSIAR recommends denial. DPSIAR states SBP was established 
by Public Law (PL) on 21 Sep 72 and it required that the spouse 
be informed when a married service member declined or elected 
less than maximum spouse coverage. However, PL 99-145 required 
service members retiring on or after 1 Mar 86 to obtain spouse 
concurrence in the SBP election. 

 

The Secretary of the Air Force (SAF) makes the SBP election for 
service members who are determined to be incompetent by military 
medical officers, the Department of Veterans Affairs (DVA) or by 
a court of competent jurisdiction. The retiring service member’s 
next-of-kin (NOK), as identified on the disability retirement 
orders, must be briefed on the options and effects of the SBP. 
The NOK, as the person most knowledgeable of the service member, 
recommends the SAF elect the SBP coverage they believe the 
service member would select if able to act on their own behalf. 

 

Service members, who are married at retirement and do not elect 
SBP coverage for an eligible spouse, may not provide coverage for 
the spouse in the future, unless Congress authorizes an open 
enrollment period. If a service member becomes incompetent 
following retirement, the service member’s legal representative 
may request the SAF make an open enrollment election on the 
service member’s behalf. 

 

DPSIAR further states the applicant contends her husband was not 
mentally competent to make a rational decision regarding SBP at 
the time of his retirement, however, she has not provided any 
evidence to show the service member was found mentally 
incompetent by Air Force medical authorities. The service member 
failed to elect SBP coverage during five open enrollment periods. 
If the applicant had obtained legal conservatorship of the 
service member during any of the SBP open enrollments, she could 
have submitted a request to the SAF to elect coverage on her 
behalf. SBP is similar to commercial life insurance in that an 
individual must elect to participate during the opportunities 
provided by law and pay the associated premiums in order to have 
coverage. To approve this request would provide the service 
member an additional opportunity to elect SBP coverage not 
afforded other retirees similarly situated. 

 

The complete AFPC/DPSIAR evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant states she was not notified as required by law of 
her husband’s decision to not elect SBP coverage. 

 


Since 1994 she has been taking care of her husband and his 
property under a general power of attorney. The DVA doctors 
advised that her husband needed to be cared for full time in a 
DVA contracted facility. The county then assisted her in 
establishing conservatorship. She believes there is no 
connection between her conservatorship and the open enrollment 
period. Her contention is that they suffered an injustice 
because she did not receive the statutorily required notice of 
election and the regulatory requirement of a counseling session 
at retirement. She believes she should be granted SBP coverage 
based on Kelly v. U. S. 

 

The applicant’s complete letter 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 an error or an injustice. The 
applicant's complete submission was thoroughly reviewed and her 
contentions were duly noted. However, we do not find the 
applicant’s assertions and the documentation provided in support 
of her appeal sufficiently persuasive to override the rationale 
provided by the Air Force office of primary responsibility (OPR). 
Therefore, we agree with the recommendation of the OPR and adopt 
its rationale as the basis for our decision the applicant has 
failed to sustain her burden of establishing the existence of 
either an error or an injustice. Accordingly, 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 Docket 
Number BC-2010-00925 in Executive Session on 14 Sep 10, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 5 Mar 10, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 14 May 10. 

 Exhibit C. Letter, SAF/MRBR, dated 4 Jun 10. 

 Exhibit D. Letter, Applicant, dated 15 Jun 10. 

 

 

 

 

 

 Panel Chair