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AF | BCMR | CY2011 | BC-2011-02755
Original file (BC-2011-02755.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02755 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

She be entitled to benefits under the Survivor Benefit Plan 
(SBP). 

 

____________________________________________________________
_____ 

 

APPLICANT CONTENDS THAT: 

 

She does not believe her late husband understood the SBP 
entitlements and elected not to take it. 

 

In support of her request, the applicant provides a personal 
statement; copies of the deceased member’s Death 
Certificate, marriage license, and other documents. 

 

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

 

____________________________________________________________
_____ 

 

STATEMENT OF FACTS: 

 

The applicant and the service member were married on 30 Jul 
55. 

 

The Defense Finance and Accounting Service (DFAS) records 
indicate the decedent declined SBP coverage prior to his 1 
Nov 76 retirement. The applicant provided a copy of the 
spouse notification letter, dated 23 Jul 76, sent to her by 
McChord AFB WA, as required by law, informing her of the 
decedent's decision to decline SBP coverage upon his 
retirement. The former member died on 30 Apr 11. 

 

Other 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. Accordingly, there is no need to recite 
these facts in this Record of Proceedings. 

 


____________________________________________________________
_____ 

 

 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR recommends denial, stating, in part, that there 
was no error or injustice in the case. They note, in the 
event relief is granted, the retroactive SBP premium debt is 
approximately $126,200. 

 

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, although this applicant claims she does not 
remember seeing the notification letter when the decedent 
declined SBP coverage prior to his retirement, clearly the 
spouse notification letter was sent to her by the Air Force 
as required by law. Furthermore, the decedent had four 
post-retirement open enrollment opportunities to obtain 
additional information about the SBP and elect coverage on 
the applicant's behalf but failed to do so. Unfortunately, 
based on the facts of this case, the applicant does not meet 
the criteria as a Barber widow and the Air Force has no 
authority to pay her an SBP annuity. It would be 
inequitable to those members who chose to participate when 
eligible and subsequently received reduced retired pay, and 
to other widows whose sponsors chose not to participate, to 
provide entitlement to this widow on the basis of the 
evidence presented. 

 

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 2 Sep 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. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice. We took 
notice of the applicant's complete submission, including her 
late husband’s military records in judging the merits of the 
case; however, while we sympathize with the applicant, the 
Air Force office of primary responsibility (OPR) has 
conducted an exhaustive review of the available evidence and 
we are in agreement with its opinion and recommendation. 
Therefore, we adopt the rationale expressed as the basis for 
our conclusion that the applicant has not been the victim of 
an error or injustice. In view of the above and in the 
absence of evidence to the contrary, we find no basis to 
recommend granting the relief sought in this application. 

 

____________________________________________________________
____ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; 
the application was denied without a personal appearance; 
and 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-2011-02755 in Executive Session on 29 May 2012, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 11 Jul 11, w/atchs. 

 Exhibit B. Decedent's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSIAR, dated 19 Aug 11. 

 Exhibit D. Letter, SAF/MRBR, dated 2 Sep 11. 

 

 

 

 

 Panel Chair 



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