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AF | BCMR | CY2013 | BC 2013 04033
Original file (BC 2013 04033.txt) Auto-classification: Approved
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04033
	              (DECEASED)	COUNSEL:  NONE
	              (APPLICANT)	HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to reflect that he 
elected “Spouse” coverage under the Survivor Benefit Plan (SBP).


APPLICANT CONTENDS THAT:

She never received notification of her option to decline 
participation in the SBP.

In support of her request, the applicant provides copies of a 
notarized sworn statement, marriage certificate, and certificate 
of death.

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


STATEMENT OF FACTS:

According to documentation provided by the applicant, she and her 
deceased husband were married on 28 May 55.

According to documentation provided by the applicant, her deceased 
husband passed away on 22 Oct 11.


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.  Additionally, the applicant provided a 
sworn statement indicating the notification was not received.  

Public Law (PL) 92-425 established on 21 Sep 72, required that the 
spouse be informed when a married member declined or elected less 
than maximum spouse coverage.  The U.S. Court of Claims 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, commonly known as 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.

In the event relief is granted, unpaid contributions 
(approximately $73,200) must be collected before the applicant 
would be entitled to receive SBP payments.

A complete copy of the DPFFF evaluation is at Exhibit B.


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.  She asserts that the Air Force’s failure 
to follow procedures required by law gives rise to a substantive 
right to money improperly withheld because participation in SBP 
was automatic, absent an affirmative election and proper 
notification and opportunity for counseling (Exhibit D).

On 10 Jun 14, the applicant’s congressman inquired about the 
status of the applicant’s case.  The correspondence included a 
signed statement from the applicant reiterating her disagreement 
of the OPR’s recommendation that SBP entitlement is contingent 
upon recovering the premiums her deceased husband would have paid 
(Exhibit E).


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing 
law or regulations.
2.  The application was timely filed.
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 Air 
Force OPR’s recommendation that the member’s records should be 
corrected to reflect that he made a valid election for spouse 
coverage, based on full retired pay effective 31 Oct 76.  While 
the applicant argues that the Air Force error entitles her to the 
SBP proceeds, DoD policy indicates SBP premiums must be collected 
by the Defense Finance and Accounting Service (DFAS) prior to 
issuing SBP payments.  Therefore, the unpaid contributions will be 
collected before the applicant receives SBP payments.  
Accordingly, in the interest of justice, we recommend the 
applicant’s records be corrected to the extent indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to DECEDENT be corrected to show that on 31 Oct 76, he 
elected spouse only coverage under the Survivor Benefit Plan, 
based on full retired pay naming the APPLICANT as the beneficiary.


The following members of the Board considered AFBCMR Docket Number 
BC-2013-04033 in Executive Session on 27 Jun 14 under the 
provisions of AFI 36-2603:

	                       , Panel Chair
	                     , Member
	                        , Member

All members voted to correct the records as recommended.  The 
following documentary evidence pertaining to considered AFBCMR 
Docket Number BC-2013-04033 was considered:

	Exhibit A.  DD Form 149, dated 12 Sep 13, w/atchs.
	Exhibit B.  Letter, AFPC/DPFFF, dated 19 Nov 13.
	Exhibit C.  Letter, SAF/MRBR, dated 6 Dec 13.
	Exhibit D.  Letter, Applicant, dated 31 Dec 13, w/atchs.
		Exhibit E.  Letter, Congressman, dated 10 Jun 14, w/atchs.
		Exhibit F.  Letter, AFBCMR, dated 25 Jul 14.

						 



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