RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-03166
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased husbands record be corrected to reflect he elected
spouse and child coverage under the Survivor Benefit Plan (SBP).
________________________________________________________________
APPLICANT CONTENDS THAT:
When her husband retired from active duty in 1981, he enrolled
in SBP for child only coverage without her knowledge.
Additionally, she was never notified of that decision.
In support of this appeal, the applicant provides a notarized
statement, the former members death certificate, an affidavit
of correction, marriage certificate and the decedents DD Form
214, Certificate of Release or Discharge from Active Duty.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The decedent is a former member of the Air Force who retired on
30 September 1982 in the grade of technical sergeant.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. Public Law 92-425, which
established SBP effective 21 September 1972, 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 SBPs
implementation, who were not given notice of the sponsors
election, are entitled to full SBP coverage. There was no
requirement for spouses to concur in SBP election until the
passage of PL 99-145, which applies only to members retiring on
or after 1 March 1986.
The applicant and the decedent were married on 19 July 1963.
The Defense Finance and Accounting Service records reflect the
decedent elected child only SBP coverage prior to his 1 October
1981 retirement. Neither the decedents form, nor evidence that
the required notice was sent to the applicant could be located.
The former member died on 9 June 2013.
There is no record the required notice was given to the
applicant. Even after the death of the retired member, the
applicant provided a sworn statement that she did not receive
notification that her husband declined SBP coverage.
The decedents record should be corrected to show he elected
spouse and child coverage on 30 September 1981 based on full
retired pay. Approval should be contingent upon recovery of SBP
premiums the decedent would have paid had he made the election
at that time.
The complete DPFFF evaluation is at Exhibit B.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 7 August 2013, for review and comment within
30 days (Exhibit C). As of this date, this office has received
no response.
________________________________________________________________
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. Sufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. We took notice
of the applicants complete submission in judging the merits of
the case. After thoroughly reviewing the evidence submitted, we
are persuaded the applicant is entitled to the relief she seeks.
There is no evidence the applicant received the required notice,
in accordance with Public Law 92-425, that her husband elected
less than maximum spousal coverage under SBP. Accordingly, we
recommend the record be corrected as indicated below.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to show that on
30 September 1981, he made a timely and effective election for
spouse and child(ren) coverage under the Survivor Benefit Plan
(SBP) based on full retired pay.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2013-03166 in Executive Session on 29 May 2014, under
the provisions of AFI 36-2603:
All members voted to correct the record, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Jun 13.
Exhibit B. Letter, AFPC/DPFFF, dated 22 Jun 13.
Exhibit C. Letter, SAF/MRBR, dated 7 Aug 13.
AF | BCMR | CY2013 | BC 2013 04695
Another dependent child was born on 4 December 1981 after the decedents retirement. DPFFF states there is no evidence of Air Force error; however, to preclude an injustice, they recommend the record be corrected. The members record should be corrected to reflect he elected spouse and child coverage based on full retired pay effective 1 August 1980, and his son is permanently incapable of self- support.
AF | BCMR | CY2013 | BC 2013 04435
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04435 APPLICANT: COUNSEL: NONE MEMBER: (DECEASED) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased husbands record be corrected to show that he elected spouse coverage, at the full level, under the Survivor Benefit Plan (SBP), naming her as beneficiary. ...
AF | BCMR | CY2013 | BC 2013 03356
She does not recall receiving a letter from the Air Force informing her of her spouses decision to decline SBP participation. 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. Exhibit C. Letter, SAF/MRBR, dated 19 Sep 13.
AF | BCMR | CY2013 | BC 2013 05461
APPLICANT CONTENDS THAT: At the time of her husbands retirement in June 1988, she was not informed of her survivor benefit rights as a spouse. Microfiche records produced by the Air Force Accounting and Finance Center (AFAFC) from July 1989 reflect the decedent declined SBP coverage with the applicant's concurrence prior to his 1 July 1988 retirement. Even though the applicant claims she was not provided an SBP election to sign and was not informed of the members election, finance...
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In the event the applicant provides the requested documents, it would be appropriate to correct the decedents records to reflect his son is permanently incapable of self-support. While the applicant has provided medical documentation regarding her son, there is no evidence from a medical provider that her son is incabable of self support. Exhibit E. Letter, Applicants Response, dated 31 Dec 13, w/atchs.
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AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, indicating there is no record that the required notice for spouses to concur in the SBP election was sent to the applicant. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the recommendation that SBP entitlement is contingent upon recovering the premiums her deceased husband would have paid, had he made the elections at the time of his retirement. Exhibit E. Letter, Congressman, dated 10 Jun 14, w/atchs.
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In a letter dated 20 November 2014, AFPC/DPFFF invited the applicant to provide a copy of the court document that recognized her common law marriage to the decedent prior to their 20 November 2013 licensed marriage and a certified copy of the decedents death certificate. The Defense Enrollment Eligibility Reporting System (DEERS) reflects the member was married to his former spouse on 13 June 1987 and he elected spouse only SBP coverage prior to his 1 December 1988 retirement. Exhibit C....
An AFAFC letter to the decedent, dated 7 October 1972, explained that SBP coverage had been established on his spouse's behalf in compliance with the provision of the law that required establishment of maximum spouse and child coverage if a member, such as the applicant, made no election before retirement. Documents provided by the applicant include a copy of a 7 Oct 72 letter to the decedent from the Air Force Accounting and Finance Center (AFAFC) which explained SBP coverage had been...
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He submitted DD Form 1882, for former spouse and child coverage; however, DFAS-CL did not honor the election because it was not received until after the one-year eligibility period. However, while the applicant contends the election for former spouse coverage was made within the required time, no evidence has been provided, to our satisfaction, that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. THE BOARD DETERMINES...
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The decedent elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Jul 95 retirement. There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the first year following their divorce as the law requires. The complete DPFFF evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant acknowledges the change to the advisory opinion to recommend the decedents record...