RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:		DOCKET NUMBER:  BC-2012-04928
	        (APPLICANT)		COUNSEL:  NONE
	        (DECEASED)		HEARING DESIRED:  NO
	

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APPLICANT REQUESTS THAT:

Her deceased husband’s record be corrected to entitle her to an 
annuity under the Survivor Benefit Plan (SBP). 

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APPLICANT CONTENDS THAT:

She intended to be married to the former service member for many 
years; unfortunately, he died five days prior to their one-year 
wedding anniversary.

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

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STATEMENT OF FACTS:

On 17 Oct 98 Public Law 105-261 authorized a paid-up provision 
to the SBP.  The law states that, effective Oct. 1, 2008, no 
reduction may be made in the retired pay of a participant in SBP 
for any month after the latter of the 360th month of retired pay 
reduction and the month during which the participant reaches 70 
years of age.

On 29 Apr 11, the applicant and the former service member were 
married.

On 24 Apr 12, the former service member passed away at the age 
of 70, five days prior to their one-year wedding anniversary.

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of 
primary responsibility which is included at Exhibit C.  

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AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial, indicating there is no evidence of 
an error or injustice.  The Defense Enrollment Eligibility 
Reporting System (DEERS) records indicate that the deceased 
former member was married to his former spouse on 26 Dec 68 and 
elected spouse only SBP coverage for her prior to his 1 Jun 82 
retirement.  On 20 Sep 10, his former spouse died and the 
Defense Finance Accounting Service suspended the former service 
member’s SBP coverage.  DEERS reflects the former service member 
and the applicant married on 29 Apr 11 and in May 2011, he 
requested DFAS-CL reinstate the suspended spouse coverage on the 
applicant’s behalf.  However, the former service member died 
five days before the first anniversary of their marriage, 
rendering the applicant ineligible to receive an SBP annuity as 
she did not meet the criteria set forth in the governing statute 
to qualify for an SBP annuity.  Title 10 defines a widow (for 
the purposes of SBP) as the surviving spouse of a person who, if 
not married to the person at the time he became eligible for 
retired pay, was married to him for at least one year 
immediately before his death.  The law does not provide a waiver 
for the one-year, post-retirement marriage requirement, unless 
the spouse is the parent of issue of a child born before the 
first anniversary of the marriage.  As the applicant did not 
have a child, this criteria [sic] was not met.  It would be 
inequitable to other members and their surviving spouses, who 
were not married for one full year, and who likewise, did not 
attain eligibility to receive SBP payments, to provide the 
benefit to the applicant.  While it is unfortunate the former 
service member did not live longer, there is no basis in law to 
authorize payment of SBP to the applicant.

A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Her husband made 340 SBP premium payments prior to his death on 
behalf of his former spouse and herself, and was only 20 
payments away from being “paid-up” in the program.  She has some 
physical and mental injuries and no money to take care of her.  
She has dealt with these issues for years and is in need of the 
SBP to care for herself, as she has nothing to live on (Exhibit 
E).  

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ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant has no recommendation in this 
case, but presents possible circumstances leading to the death 
of the applicant’s spouse.  Under the decedent’s circumstances 
prior to his death, introduction of life saving measures, such 
as systemic antibiotics, corticosteroids, vasopressors to 
maintain blood pressure, careful fluid balance, and often 
artificial ventilator support are, unfortunately, not always met 
with success.  Nevertheless, although the prognosis for recovery 
of an individual in the decedent’s state is often very poor, 
life is sometimes maintained in a vegetative state that could 
exceed several days from time of onset.  However, this 
hypothetical scenario does not change the policy realities in 
this case.  While it might appear disingenuous to not waive a 
mere five days to allow the applicant’s eligibility, the 
application of the rules may be the Board’s only defensible 
option by necessity.

A complete copy of the AFBCMR Medical Consultant’s evaluation is 
at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the AFBCMR Medical Consultant evaluation was forwarded 
to the applicant on 28 Oct 13 for review and comment within 30 
days.  As of this date, no response has been received by this 
office (Exhibit F).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
notice of the applicant’s complete submission, including her 
rebuttal response, in judging the merits of the case; however, 
we agree with the opinion and recommendation of AFPC/DPFFF and 
adopt their rationale as the basis for our conclusion the 
applicant has not been the victim of an error or injustice.  
While we empathize with the applicant’s plight, there is no 
legal or equitable basis for us to recommend granting relief.  
While the applicant may believe that this unfortunate situation 
renders her the victim of an injustice, there is no evidence 
that she has been treated differently than those similarly 
situated.  While we also note the comments of the AFBCMR Medical 
Consultant indicating that life is sometimes maintained in a 
vegetative state that could exceed several days from time of 
onset, the law does not provide a waiver for the one-year, post-
retirement marriage requirement.  While it’s regrettable the 
decedent passed away five days prior to the applicant attaining 
eligibility, we do not find the circumstances so extraordinary 
to conclude that the applicant is the victim of an injustice.  
Therefore, in view of the above, we find no basis upon which to 
recommend favorable consideration of the applicant’s request.
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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.
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The following members of the Board considered AFBCMR Docket 
Number BC-2012-04928 in Executive Session on 16 Jan 14, under 
the provisions of AFI 36-2603:

	             , Panel Chair
	             , Member
	             , Member

The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 17 Oct 12, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFPC/DPFFF, dated 14 Nov 12.
  Exhibit D.  Letter, SAF/MRBR, dated 10 Dec 12.
  Exhibit E.  Letter, Applicant, dated 14 Jan 13.
  Exhibit F.  Letter, SAF/MRBC, dated 28 Oct 13.
  Exhibit G.  Letter, BCMR Medical Consultant, dated 28 Oct 13.




			
			Panel Chair



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DEPARTMENT OF THE AIR FORCE 
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