Search Decisions

Decision Text

AF | BCMR | CY2012 | BC-2012-03990
Original file (BC-2012-03990.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-03990 

 

 COUNSEL: NONE 

(DECEASED SERVICE MEMBER) 

 

 (APPLICANT) HEARING DESIRED: YES 

 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her late spouse’s records be corrected to reflect that he made a 
timely election for spouse coverage under the Survivor Benefit 
Plan (SBP). 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

She believes her husband made the decision not to elect SBP 
coverage based on the poor health prognosis she had received. As 
a military wife she served alongside of her husband for 18 of the 
20 years he served. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is the widow of the former service member who 
retired on 1 Mar 77. 

 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force, which is attached at Exhibit B. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIAR recommends denial indicating there is no evidence of 
an error or injustice, or any basis in law to grant relief in 
this case. The service member and the applicant were married on 
21 Dec 61. He declined SBP coverage prior to his 1 Mar 77 
retirement. They divorced on 3 Oct 89, and remarried on 
1 Mar 09. The Defense Finance and Accounting Service-Cleveland 
Center (DFAS-CL) has no evidence the service member submitted an 


SBP election on the applicant's behalf during any of the four 
additional open enrollment periods before his death on 12 Jun 11. 

 

The service member could have elected spouse coverage prior to 
his retirement, but did not. Although the applicant believes her 
husband felt that due to the prognosis of her medical condition 
that it would not be necessary to elect SBP coverage for her, it 
is each retiree's responsibility to elect the type and level of 
SBP coverage they believe is in their family's best interest. 
The SBP was created to provide a service member's survivors a 
level of protection in the event of unforeseen, future loss of 
income. Each service member voluntarily makes their SBP decision 
upon the level of risk they are willing to accept. While it is 
unfortunate the service member failed to elect SBP coverage on 
the applicant's behalf five times, it would be inappropriate to 
provide an additional opportunity to elect SBP coverage, an 
opportunity not afforded to other surviving spouses similarly 
situated. 

 

The complete AFPC/DPSIAR evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant believes she has been disenfranchised by her 
husband's decision not to select SBP. She was never informed by 
her husband or the Air Force of his decision to decline SBP as 
required by law. Her husband told her on several occasions that 
she would be taken care of if he died; thus, indicating she would 
receive widow’s benefits from the Air Force. She was not aware 
of her husband's election not to elect SBP until she received the 
response from Senator Rockefeller. 

 

The applicant’s complete response 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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or an injustice. We took 
notice of the applicant’s complete submission, to include the 
rebuttal response, in judging the merits of the case; however, we 
agree with the opinion and the recommendation of the Air Force 
office of primary responsibility and adopt its rationale as the 
basis for our conclusion that the applicant has failed to sustain 


her burden of proof of the existence of an error or injustice. 
Although the applicant believes her medical condition may have 
precluded the service member from electing SBP coverage, it is 
the responsibility of each service member to elect the SBP 
coverage that best suits his family situation. Furthermore, the 
service member had five opportunities to elect SBP coverage but 
failed to do so. The applicant further alleges she was not 
informed of the service member’s decision to decline SBP coverage 
as required by law. Other than her own assertions, the applicant 
has provided no evidence that she was not briefed on the options 
and effects of SBP. While the applicant’s situation is 
unfortunate, in the absence of evidence of an error or an 
injustice on the part of the Air Force, we find no basis to 
recommend granting the relief sought in this application. 

 

4. The applicant's 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 issue involved. 
Therefore, the request for a hearing is not favorably considered. 

 

_________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified that the evidence presented did not 
demonstrate the existence of a material error or injustice; that 
the application was denied without a personal appearance; and 
that 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-2012-03990 in Executive Session on 7 May 13, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 19 Aug 12, w/atchs. 

 Exhibit B. Letter, AFPC/DPSIAR, dated 26 Sep 12. 

 Exhibit C. Letter, SAF/MRBR, dated 9 Oct 12. 

 Exhibit D. Letter, Applicant, dated 4 Nov 12. 

 

 

 

 

 

 Panel Chair 

Similar Decisions

  • AF | BCMR | CY2011 | BC-2011-02755

    Original file (BC-2011-02755.txt) Auto-classification: Denied

    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. 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. ...

  • AF | BCMR | CY2011 | BC-2011-00062

    Original file (BC-2011-00062.txt) Auto-classification: Denied

    She indicates there is no evidence the deceased former member elected former spouse coverage for any of his former spouses. In Dec 92, DFAS received an SBP Open Enrollment Election form from the member requesting to change the applicant’s coverage from spouse to former spouse. A complete copy of the AFRBA Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant contends...

  • AF | BCMR | CY2011 | BC-2011-00463

    Original file (BC-2011-00463.txt) Auto-classification: Denied

    A copy of the SBP election, located in the member’s finance record, reflects the applicant signed a statement concurring in the member’s election, as required by Public Law 99-145. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be...

  • AF | BCMR | CY2010 | BC-2010-02443

    Original file (BC-2010-02443.txt) Auto-classification: Denied

    DPSIAR states it is unfortunate the service member’s health declined after his marriage; however, there is no basis in law which would entitle the applicant to SBP. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of a material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered...

  • AF | BCMR | CY2013 | BC-2011-02061

    Original file (BC-2011-02061.pdf) Auto-classification: Approved

    _______________________________________________________________ STATEMENT OF FACTS: According to the information provided by the Air Force office of primary responsibility, the applicant and the decedent were married on 29 May 1961. After the death of the retired member, the widow provided a sworn statement that she did not receive notification that her husband had declined SBP coverage. To date, a response has not been received (Exhibit C).

  • AF | BCMR | CY2013 | BC 2013 01431

    Original file (BC 2013 01431.txt) Auto-classification: Denied

    The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial, indicating there is no evidence of an error or injustice. The deceased former member retired on 31 May 96 and declined SBP coverage. The applicant became entitled to DIC...

  • AF | BCMR | CY2010 | BC-2010-00925

    Original file (BC-2010-00925.txt) Auto-classification: Denied

    The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit B. However, PL 99-145 required service members retiring on or after 1 Mar 86 to obtain spouse concurrence in the SBP election. The complete AFPC/DPSIAR evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states she was not...

  • AF | BCMR | CY2013 | BC 2012 01987

    Original file (BC 2012 01987.txt) Auto-classification: Approved

    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 member’s 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 | CY2012 | BC-2011-05023

    Original file (BC-2011-05023.pdf) Auto-classification: Denied

    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 | CY2009 | BC-2009-02010

    Original file (BC-2009-02010.doc) Auto-classification: Denied

    There is no evidence the member submitted a valid former spouse election within one year following their divorce. The Legal Advisor states the widow became the SBP beneficiary by operation of law when the member died in Jun 05 and is currently receiving SBP payments. We note the opinion and recommendation of the SAF/MRB Legal Advisor that as an operation of law the member’s spouse is the legal beneficiary unless a legally effective election or deemed election (pursuant to a court order)...