RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-02878
COUNSEL: NONE
HEARING DESIRED: NOT INDICATED
_________________________________________________________________
APPLICANT REQUESTS THAT:
His late fathers record be corrected so his mother can receive a
Survivor Benefit Plan (SBP) annuity based on his fathers
participation in the program.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His mother was diagnosed with Alzheimers disease three years
prior to his fathers death and she was not aware of the SBP at
the time of his death.
In support of his appeal, the applicant provides a personal
statement; and, copies of his fathers Death Certificate; DD Form
214, Armed Forces of the United States Report of Transfer or
Discharge; his mothers medical documents; his parents marriage
certificate; a Defense Finance and Accounting Service response to
a congressional inquiry; and Probate Court Power of Attorney and
Living Trust documents.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
According to the members DD Form 214, provided by the applicant,
the decedent was released from the Regular Air Force on 31 July
1965 and retired in the grade of major (O-4) effective 1 August
1965. He served 20 years and 16 days on active duty.
The remaining relevant facts are contained in the letter prepared
by the Air Force office of primary responsibility (OPR) at
Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial. DPSIAR indicates the Defense
Enrollment Eligibility Reporting System (DEERS) records reflect
the decedent and his spouse were married on 26 June 1948 and that
he did not enroll in the Retired Servicemans Family Protection
Plan (RSFPP) prior to his 1 August 1965 retirement. Air Force
Accounting and Finance Center (AFAFC) records reflect the member
declined SBP coverage during the SBPs initial enrollment period
(21 September 1972 20 March 1974). Subsequently, he elected
maximum spouse only coverage during the SBP open enrollment
authorized by Public Law 97-35 (1 October 1981 30 September
1982). The member died on 19 February 2000. There is no
evidence his widow or any other person responsible or concerned
for her well-being submitted an annuity claim within the six-year
time limit. Had a valid claim been submitted before February
2006, the decedents widow would be receiving monthly SBP
payments of approximately $2,199.
DPSIAR states the Barring Act limits payments of SBP annuities to
those claims received within six years of the participants
death. While they are sympathetic to the widows medical
condition, her condition and her sons failure to properly act on
her behalf, are not grounds to waive the Barring Act. The claim
for late payment, previously reviewed by the Deputy General
Counsel at the DFAS Denver Center, reported in their 10 August
2002 opinion that there is no authority to waive the six-year
statute of limitation.
DPSIAR indicates there is no evidence of an Air Force error in
this case; therefore, they recommend the request be denied.
However, if the Boards decision is to grant relief and set aside
the Barring Act, the decedents retired pay records should be
corrected to reflect the applicant submitted a valid claim for
payment of the SBP on 20 February 2000.
The complete DPSIAR evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He has already provided proof from his mothers physician that
his mother was and is not mentally competent or aware of the SBP
benefits. Veteran Affairs has already found his mother to be
incompetent to make her own decisions or take care of herself.
He is not blaming anyone for not requesting SBP benefits, he just
asks the Board to consider and vote favorably on his request in
behalf of his mother.
The applicants complete rebuttal, 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. Sufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. After
thoroughly reviewing the evidence in this case, we are persuaded
it was the applicants intent to provide his current spouse with
an SBP annuity. In this respect, we note the decedent elected
maximum spouse only coverage during the SBP open season
enrollment authorized by Public Law 97-35. However, due to his
spouses illness of Alzheimers disease, she was unaware of the
SBP at the time of his death and therefore did not make a claim
for benefits. We believe that since SBP premiums were deducted
from the members retired pay; and, in an attempt to preclude a
possible injustice, the requested relief should be granted.
Accordingly, we recommend the members records be corrected to
the extent indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that on 20 February
2000, the designated Survivor Benefits Program (SBP) beneficiary
submitted a valid claim for SBP payments.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2010-02878 in Executive Session on 7 June 2011, under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
All members voted to correct the record as recommended. The
following documentary evidence for AFBCMR Docket Number BC-2010-
02878 was considered:
Exhibit A. DD Form 149, dated 4 Aug 10, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 29 Sep 10.
Exhibit C. Letter, SAF/MRBR, dated 12 Nov 10.
Exhibit D. Letter, Applicant, dated 8 Dec 10.
Panel Chair
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