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 members 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 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 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 husbands 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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They note that the record should be corrected to show that, effective 30 Nov 76, the decedent elected spouse only SBP coverage based on full retired pay. 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 she did not receive notification that the decedent had declined SBP coverage. ________________________________________________________________ THE...
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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. 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 BOARD...
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