RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00699
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to benefits under the Survivor Benefit Plan
(SBP).
____________________________________________________________
_____
APPLICANT CONTENDS THAT:
She was never made aware of the decedents decision to
decline SBP coverage. She never received any information
nor was she contacted by Air Force officials.
In support of her request, the applicant provides a
notarized personal statement; copies of the deceased
members Death Certificate, marriage license, and other
supporting documents.
The applicant's complete submission, with attachments, is at
Exhibit A.
____________________________________________________________
_____
STATEMENT OF FACTS:
The applicant and the service member were married on 26 Jun
63. Other relevant facts pertaining to this application,
extracted from the applicants military records, are
contained in the letter prepared by the appropriate office
of the Air Force. Accordingly, there is no need to recite
these facts in this Record of Proceedings.
____________________________________________________________
_____
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends granting relief. They note, the
intent of the spouse notification requirement was to ensure
spouses, upon the sponsors death, did not learn for the
first time they werent covered by SBP.
Public Law (PL) 92-425, which established the SBP effective
21 Sep 72, required that the spouse be informed when a
married member declined or elected less than maximum spouse
coverage. The U.S. Court of Claims has consistently ruled
that widows of members retiring after SBP's implementation,
who were not given notice of the sponsor's election, are
entitled to full SBP coverage-Barber v. U.S., 676 F.2d 651
(CI. Ct. 1982); Dean v. U.S., 10 CI. Ct. 563 (1986); and
Kelly v. U.S., 826 F.2d 1049 (Fed Cir. 1987)--commonly
called Barber cases. There was no requirement for spouses
to concur in the SBP elections until passage of PL 99-145
and applied only to members retiring on or after 1 Mar 86.
In this case, as in all Barber cases, the facts are
essentially the same: there is no record the required notice
was sent to the applicant and the applicant has provided a
sworn statement that the notification was not received.
The applicant and the decedent were married on 26 Jun 63.
Defense Finance and Accounting Service (DFAS) records
indicate the member declined SBP coverage prior to his 1 Oct
83 retirement. The member's election form could not be
located by DFAS-Cleveland Center (DFAS-CL) and there is no
evidence the required notice was or was not sent to the
applicant. The member died on 31 Dec 10. In the event
relief is granted, the unpaid contributions to the SBP that
would have been deducted from the member's retired pay
through the date of his death (approximately $143,100) must
be collected before the applicant would be entitled to
receive payments (approximately $1,935 per month).
The complete AFPC/DPSIAR evaluation is attached at Exhibit
C.
____________________________________________________________
_____
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 15 Apr 11 for review and comment within 30
days. As of this date, no response has been received by
this office (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 warranting
corrective action. The Air Force office of primary
responsibility has adequately addressed the issues presented
by the applicant and we are in agreement with its opinion
and recommendation. In addition, we remind the applicant
that approval is contingent upon recovery of SBP premiums
the decedent would have paid had he made the election at
that time. Accordingly, we recommend the decedents record
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
30 September 1983, he elected spouse only coverage based on
the full retired pay.
____________________________________________________________
____
The following members of the Board considered AFBCMR Docket
Number BC-2011-00699 in Executive Session on 25 October
2011, under the provisions of AFI 36-2603:
All members voted to correct the records, as recommended.
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 Feb 11, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 4 Apr 11.
Exhibit D. Letter, SAF/MRBR, dated 15 Apr 11.
Panel Chair
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