RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03072
(DECEASED) COUNSEL: NONE
(APPLICANT) HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased husbands records be corrected to reflect that he
elected Spouse Only coverage under the Survivor Benefit Plan
(SBP) instead of Child Only coverage.
________________________________________________________________
APPLICANT CONTENDS THAT:
At the time of her husbands retirement, they were given
inadequate information regarding the SBP and the Child Only
option was never in the best interest of their family. They did
not realize this until after her husband retired.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________ ______________________________________________
STATEMENT OF FACTS:
According to the Certificate of Death provided by the applicant,
the service member died on 7 Aug 92 due to cardiac arrest and
probable myocardium rupture. The applicant was listed as his
surviving spouse.
The remaining relevant facts pertaining to this application are
contained in the letter prepared by the appropriate office of
the Air Force, which is at Exhibit C.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF recommends denial, indicating the applicants
assertion that they did not receive the proper information at
the time of her deceased husbands retirement is without merit.
She offers no explanation of why her deceased husband failed to
seek correction of his records after his 1978 retirement or
before his death in 1992, nor did he elect coverage for her
during the open enrollment from 1 Oct 81 to 30 Sep 82. The
deceased former member elected child only coverage prior to
his 1 Aug 78 retirement. Additionally, there is no evidence
that the SBP counselor did not fully explain the options and the
effects of the SBP to the service member and the applicant.
Given that a presumption of regularity attaches to government
affairs, in the absence of specific evidence to the contrary, it
is presumed that officers of the government, like other public
officials, discharge their duties correctly, lawfully, and in
good faith.
Furthermore, even if there was evidence of an error or injustice
with respect to the deceased former members SBP election, the
six-year statute of limitations requires a claim for payment of
SBP annuities be submitted within six years of the members
death. In accordance with Hart v. United States, 910 F.2e 815
(Federal Circuit Court 1990), a claim filed more than six years
after the death of a service member is barred by the six year
statute of limitations. Absent receipt of a valid claim, the
Air Force has no legal authority to pay the survivor an SBP
annuity, and payment shall be forever barred.
A complete copy of the AFPC/DPSIAR evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant indicates that she does not recall an open
enrollment period and states her family was in transition during
this period, moving between three different states. She
mentions that she met the North Carolina Department of Veterans
Administration (NCDVA) after her husbands death and was not
provided the statute of limitations information leading her to
think she had no recourse. She made subsequent visits to the
NCDVA over the years thinking she was going to the appropriate
source. Lastly, she asserts that her husbands decision making
capability was limited due to his depression and mental
struggles at the time of his retirement and subsequent years
leading up to his death. He was only capable of the most basic
of tasks.
A complete copy of the applicants response is at Exhibit E.
________________________________________________________________
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 injustice. We took
notice of the applicants complete submission, including her
rebuttal response, in judging the merits of the case; however,
we agree with the opinion and recommendation of the Air Force
office of primary responsibility (OPR) and adopt its rationale
as the basis for our conclusion the applicant has not been the
victim of an error or injustice. Therefore, in the absence of
evidence to the contrary, we find no basis to recommend granting
the relief sought in this application.
4. The applicants case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably
considered.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of an 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-2012-03072 in Executive Session on 7 Nov 13, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Jun 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSIAR, dated 6 Sep 12.
Exhibit D. Letter, SAF/MRBR, dated 24 Sep 12.
Exhibit E. Letter, Applicant, dated 12 Dec 12.
Panel Chair
3
AF | BCMR | CY2010 | BC-2010-02569
The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. DPSIAR states the law in effect at the time of the applicants divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse eligibility; therefore, the fact the divorce decree mentioned the SBP does not provide standing to establish SBP coverage on the applicants behalf. We took notice of the applicant's...
AF | BCMR | CY2011 | BC-2010-01608
_________________________________________________________________ STATEMENT OF FACTS: The member and spouse were married on 8 Oct 41. DPSIAR states SBP is awarded to common-law spouses who properly validate they resided in a state that recognizes common-law marriages and the union existed for one full year – the required length of post-retirement marriages before the spouse becomes eligible as an SBP beneficiary. Moreover, all three of these requisites must exist at the same time.
AF | BCMR | CY2013 | BC 2012 01987
She filed for the SBP annuity and was informed that her husband never elected SBP spouse coverage. DPSIAR notes that in all of these cases, the facts were essentially the same as in this case except the applicant failed to request correction within six years of the members death and her notarized statement claiming the member had told her over and over again that she was to receive his pension does not meet the standard criteria for a Barber affidavit, i.e., (1) she was not notified at...
AF | BCMR | CY2007 | BC 2007 03362
The member and the applicant were allegedly married in Tijuana, Mexico on 8 Jun 82, and he elected spouse only coverage based on a reduced level of retired pay during the open enrollment authorized by Public Law (PL) 97-35 (1 Oct 81 30 Sep 82). The Air Force office of primary responsibility has recommended that we consider voiding the decedent's 23 Sep 82 election for SBP coverage for the applicant, suggesting that the "erroneous deductions of SBP premiums for spouse coverage be refunded...
AF | BCMR | CY2012 | BC-2011-05023
However, they were married on 3 Jan 2011. In order for a spouse, who married a member after his/her retirement, to be considered eligible for the SBP annuity, the post-retirement marriage must endure for one full year from the date of marriage. Although the applicant provides evidence that recognizes their relationship as a marriage, the law requires a member to be married for one full year before the widow is eligible for SBP payments, assuming the member...
AF | BCMR | CY2013 | BC 2012 02043
_________________________________________________________________ STATEMENT OF FACTS: While married, the member elected spouse and child coverage based on a reduced level of retired pay under the SBP prior to his 1 Jun 73 retirement. There is no record of marriage at the time of his death. While counsel argues the former member never married; the evidence of record, specifically, the death certificate states otherwise.
AF | BCMR | CY2008 | BC-2008-02569
His record contains a copy of a 28 Apr 93 letter from DFAS-DE advising him, among other things, that the 12 Feb 93 open enrollment election he submitted was “invalid” because block 10 did not indicate the base amount upon which he wished to establish coverage. His open enrollment election form contained what appears to be the monthly SBP premium amount he thought would be collected from his retired pay if he elected coverage on a reduced level of retired pay. Exhibit C. Letter, SAF/MRBR...
AF | BCMR | CY2010 | BC-2009-04144
The Public Law (PL) which established the SBP on 21 Sep 72 authorized an enrollment period for members, who were already retired at that time, to elect SBP coverage. Members who were unmarried on the date of retirement have one year to elect SBP coverage for the first spouse acquired after that date. _______________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material...
AF | BCMR | CY2012 | BC-2012-01351
DPSIDAR states that there is no evidence of Air Force error in this case; however, in the absence of a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming APPLICANT as the former spouse beneficiary, effective 11 January 2005. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.