RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-03356
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her late husbands records be corrected to entitle her to a
Survivor Benefit Plan (SBP) annuity based on full spouse
coverage.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Her husband did not discuss any of his decisions with her. She
does not recall receiving a letter from the Air Force informing
her of her spouses decision to decline SBP participation.
Her spouse believed his military career was his and would only
inform her after the fact.
In support of her request, the applicant provides copies of the
decedents DD Form 214, Certificate of Release or Discharge from
Active Duty; death and marriage certificates, a sworn statement
and DOH/CHS 023a, Affidavit for Correction.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 8 Dec 72, the decedent and the applicant were married.
According to the Defense Finance and Accounting Service (DFAS)
the decedent declined SBP coverage prior to his 1 Sep
75 retirement. His election form could not be located by DFAS-
Cleveland Center (DFAS-CL) and there is no evidence the required
notice was or was not sent to the applicant.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. 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 the 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 coverageBarber v. U.S.,
676 F.2d 651 (Cl. Ct. 1982); Dean v. U.S., 10 Cl 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 applies only to
members retiring on or after 1 Mar 86.
The intent of the spouse notification requirement was to ensure
spouses, upon the sponsors death, did not learn for the first
time they were not covered by SBP. 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.
If the Board grants relief, the unpaid contributions to the SBP
that would have been deducted from the decedents retired pay
through the date of his death (approximately $80,000) must be
collected before the applicant would be entitled to receive SBP
payments (approximately $774.00 per month).
The complete DPFFF evaluation is at Exhibit B.
_________________________________________________________________
APPLICANTS REVIEW OF THE AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 19 Sep 13, for review and comment within 30 days
(Exhibit C). As of this date, no response has been received by
this office.
________________________________________________________________
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 an error or injustice. After a
thorough review of the facts and circumstances of this case, we
agree with the recommendation of the Air Force office of primary
responsibility and adopt the rationale expressed as the basis
for our decision the decedents records should be corrected to
reflect that he elected spouse SBP coverage.
Therefore, in the interest of justice, we recommend his records
be corrected as indicated below.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to the FORMER MEMBER be corrected to show that on
31 August 1975, he elected spouse-only coverage under the
Survivor Benefit Plan (SBP) based on full retired pay.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2013-03356 in Executive Session on 15 May 14, under
the provisions of AFI 36-2603:
Vice Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Jul 13, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 2 Sep 13.
Exhibit C. Letter, SAF/MRBR, dated 19 Sep 13.
Vice Chair
AF | BCMR | CY2014 | BC 2014 02773
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice. As of this date, no response has been received by this office. The Board would be willing to reconsider her request upon receipt of the applicants affidavit stating she did not receive the...
AF | BCMR | CY2013 | BC-2013-00672
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...
AF | BCMR | CY2011 | BC-2011-00699
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...
AF | BCMR | CY2013 | BC-2011-02061
_______________________________________________________________ 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 | CY2011 | BC-2011-02755
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 | CY2012 | BC-2012-04821
_______________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. 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. _______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records...
AF | BCMR | CY2013 | BC 2013 04033
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.
AF | BCMR | CY2012 | BC-2012-03698
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01382 XXXXXXX(DECEASED) COUNSEL: NONE XXXXX (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her late husbands (decedent) records be corrected to show he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP). After the death of the retired member, the widow provided a...
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...
AF | BCMR | CY2014 | BC 2014 00125
The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends the requested relief be granted. Under the provisions of SBP, the spouses of married service members had to be informed when the service member declined SBP coverage, or elected less than the maximum level of coverage. A complete copy of the AFPC/DPFFF...