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 husbands 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 applicants 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 SBPs implementation, who were
not given notice of the sponsors 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 Forces 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 applicants congressman inquired about the
status of the applicants case. The correspondence included a
signed statement from the applicant reiterating her disagreement
of the OPRs 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 OPRs recommendation that the members 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
applicants 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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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...
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PL 97-252 (8 Sep 82) permitted retiring members to provide SBP coverage for their former spouses under the insurable interest option. It is recommended that the deceased former members record be corrected to reflect that on 1 Mar 86, he elected to change SBP former spouse coverage under the insurable interest option to former spouse coverage under the spouse coverage option, naming the applicant as the eligible former spouse beneficiary, and she concurred in the change. THE BOARD...
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...
AF | BCMR | CY2012 | BC-2012-03698
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The parties divorced on 5 Jun 98, and in the Child Custody Marital Dissolution Agreement, incorporated in the divorce decree, the member agreed the applicant would receive survivor benefits from his military retirement. There is no evidence of Air Force error, and absent a competing claimant, we recommend the member's record be corrected to reflect that he elected to change SBP spouse to former spouse coverage based on full retired pay and named the applicant as the eligible former spouse...
AF | BCMR | CY2012 | BC-2012-04233
She recently discovered that upon their divorce, her ex- husband failed to change the SBP election designation from spouse to former spouse as was required by their divorce agreement. Based on the favorable recommendation rendered by the Air Force office of primary responsibility indicating that since the member did not request SBP coverage be terminated upon his divorce from the applicant, he intended for her to remain his SBP beneficiary. ...
AF | BCMR | CY2014 | BC 2014 02543
c. On 24 Jun 94, the applicant and the deceased former member divorced. 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 relief be granted indicating there is evidence of an injustice. On 24 Jun 94, the applicant and the former member divorced, however, there is no evidence that the former member submitted a...
On 22 Apr 02, DPPTR sent a letter to the applicant requesting that she provide a sworn, notarized statement in which she attested that she did not receive notification that her husband had declined SBP coverage at the time of his retirement and that she provide a statement acknowledging and understanding that, if her husband's records are changed, the unpaid contributions (approximately $27,660) will be collected from any annuity payment she would be entitled to receive. The...
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 | CY2012 | BC-2012-05110
Records maintained by the DFAS-CL reflect spouse coverage was suspended effective 26 May 95, and SBP premiums ceased at that time. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER MEMBER be corrected to show that on 27 May 1995, he elected former-spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay, naming his former spouse...