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.
________________________________________________________________
APPLICANT CONTENDS THAT:
When her husband retired, he made the decision to decline SBP
coverage without speaking to her about the matter. She was
informed that she should have received a letter from the Air
Force advising her of his decision; however, to the best of her
recollection, this did not happen.
In support of her request, the applicant submits copies of her
sworn statement, marriage certificate, husbands certificate of
death, and his DD Form 214, Report of Separation from Active
Duty.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
Information submitted by the applicant indicates that on
31 January 1976, her husband was released from active for the
purpose of retirement from the Air Force in the grade of
Technical Sergeant, and he died on 10 August 2013.
________________________________________________________________
AIR FORCE EVALUATION:
1. AFPC/DPFFF recommends approval. DPFFF states that there is no
record that the required notice was sent to the applicant and she
has provided a sworn statement that she did not receive the
notification.
2. Public Law (PL) 92-425, established the Survivor Benefit
Program (SBP) on 21 September 1972, and required that the spouse
be informed when a married member declined or elected less than
maximum spouse coverage. The intent of the spouse notification
requirement was to ensure spouses, upon the sponsor's death, did
not learn for the first time that they were not covered by SBP.
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. There was no requirement for spouses to concur in the
SBP elections until passage of PL 99- 145 and it applies only to
members retiring on or after 1 March 1986.
3. They recommend the member's record be corrected to show he
elected spouse SBP coverage based on full-retired pay. However,
approval should be contingent upon recovery of SBP premiums he
would have paid had he made the election at that time.
The complete AFPC/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 28 February 2014, for review and comment within
30 days (Exhibit C). To date, a response has not been received.
________________________________________________________________
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 injustice. After reviewing the
evidence of record, we are persuaded that favorable
consideration of the applicants request is warranted based on
the favorable recommendation rendered by the Air Force office of
primary responsibility indicating that there is no record the
required notice was sent to the applicant and she has provided a
sworn statement that she did not receive the notification.
Therefore, in view of the above and absent a competing claimant,
we recommend the decedents records be corrected as set forth
below.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to MEMBER, be corrected to show that:
a. On 31 January 1976, he made a timely and effective
election of spouse coverage under the Survivor Benefit Plan
(SBP), based on full retired pay; and
b. On 6 September 2013, the APPLICANT submitted a timely
and effective claim for survivor benefit annuity.
________________________________________________________________
The following members of the Board considered this application
in Executive Session on 29 May 2014, under the provisions of AFI
36-2603:
, Vice Chair
, Member
, Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2013-04435 was considered:
Exhibit A. DD Form 149 dated 6 September 2013, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 2 December 2013.
Exhibit C. Letter, SAF/MRBR, dated 28 February 2014.
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 | CY2013 | BC 2013 03166
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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.
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