RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04463
COUNSEL: NONE
(DECEASED SERVICE MEMBER)
HEARING DESIRED: NO
(SPOUSE)
(APPLICANT)
________________________________________________________________
APPLICANT REQUESTS THAT:
The service members records be corrected to entitle the service
members spouse to a Survivor Benefit Plan (SBP) annuity.
________________________________________________________________
APPLICANT CONTENDS THAT:
His grandmother originally filed a claim in 1975, but was told
the service member records were destroyed by fire in 1974. Her
claim for the service members pension has been denied for over
38 years. She was never told to submit a marriage certificate
or any other documents.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
On 20 Oct 45, the service member commenced his enlistment in the
Army. On 1 Jan 63, the deceased former member retired from the
Air Force.
The remaining relevant facts pertaining to this application are
contained in the letter prepared by the appropriate office of
the Air Force, which is attached at Exhibit B.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFFF recommends denial noting there is no evidence of an
error or injustice and no basis in law to warrant relief. In
order for the survivors of military retirees to continue receive
a portion of the service members retired pay, the service
members must have participated in one of the annuity plans
offered by the Department of Defense.
The Retired Servicemans Family Protection Plan (RSFPP) was in
effect until 21 Sep 72. Service members were briefed and
required to make an election prior to completing 18 years of
service. Spouse notification was not required.
The SBP was established on 21 Sep 72. An enrollment packet and
the Afterburner, USAF News for Retired Personnel, was sent to
the correspondence address the service member had provided to
the finance center and contained points of contact for retirees
to use to obtain additional information. There was no
requirement for spouse notification if the service member did
not elect to enroll in the program. The court decision for
Helen Passaro V. U.S. held that the notice provision did not
apply to a service member already entitled to retired or
retainer pay on 21 Sep 72.
On 18 Nov 97, a minimum SBP annuity was established for a
specific group of survivors annuity, certain military
surviving spouses (ACMSS). This is also referred to as
forgotten widows, those unremarried surviving spouses of
service members who retired prior to initial enrollment period
for SBP, and who died prior to 21 Mar 74. The annuity became
effective 1 Dec 97, for those spouses who quailed and applied
for the benefit.
The service member retired on 1 Jan 63. His pre-retirement
marital status could not be verified. There is no evidence
showing the service member enrolled in RSFPP prior to retiring.
On 17 Feb 68, he married his spouse and there is no evidence he
returned an election for SBP during the initial enrollment
period. The service member passed away on 14 Jan 75.
The service member had an opportunity to elect spouse coverage,
but failed to do so. Both the RSFPP and SBP are similar to
commercial life insurance in order to participate you must make
and election and pay the premiums in order to be covered. In
addition, since the service member passed away after 21 Mar 74,
his spouse is not eligible for ACMSS. Furthermore, neither the
applicant, nor the widow has offered any explanation for the
delay (over 38 years) in seeking relief of the claim. To
provide relief for this claim would be inequitable to those who
were similarly situated.
A complete copy of the 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 21 Jan 14 for review and comment within 30 days
(Exhibit C). As of this date, no response has been received by
this office.
________________________________________________________________
FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicants request and the
available evidence of record, we find the application untimely.
Applicant did not file within three years after the alleged
error or injustice was discovered as required by Title 10,
United States Code, Section 1552 and Air Force Instruction
36-2603. Applicant has not shown a plausible reason for the
delay in filing, and we are not persuaded that the record raises
issues of error or injustice which require resolution on the
merits. Thus, we cannot conclude it would be in the interest of
justice to excuse the applicants failure to file in a timely
manner.
________________________________________________________________
THE BOARD DETERMINES THAT:
The application was not timely filed and it would not be in the
interest of justice to waive the untimeliness. It is the
decision of the Board, therefore, to reject the application as
untimely.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2013-04463 in Executive Session on 9 Oct 14 and
15 Oct 14, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Forms 149, dated 11 Sep and 23 Sep 13,
w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 17 Dec 13.
Exhibit C. Letter, SAF/MRBR, dated 22 Apr 11.
3
3
AF | BCMR | CY2007 | BC-2006-03587
There is no evidence of an Air Force error or injustice or any basis in law to grant relief in this case. Applicant's complete response is at Exhibit C. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. _________________________________________________________________ The following members of the Board considered Docket Number BC-2006-03587 in Executive Session on 30 January 2007, under the provisions of AFI 36- 2603: Ms. Kathleen F. Graham,...
AF | BCMR | CY2005 | BC-2005-00953
Subsequently, Public Laws (PLs) 97-35, 101-189, and 105-261 authorized additional SBP open enrollment periods (1 Oct 81 – 30 Sep 82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29 Feb 00, respectively) so that retirees could elect or increase SBP coverage. Similarly, the Air Force may not pay an SBP annuity to the applicant, because the member retired before the implementation of the SBP and he did not choose to provide SBP coverage for her when he was eligible to do so. Exhibit C. Letter,...
AF | BCMR | CY2006 | BC-2005-02539
PL 92-425, which established the SBP on 21 Sep 72, authorized an 18- month enrollment period (21 Sep 72 - 20 Mar 74) for retired members to elect SBP coverage, but were not required to return an SBP election form in order to decline coverage. RSFPP participants could have terminated previous RSFPP coverage, or retained it in addition to a new SBP election. There were no provisions in the laws during these open enrollment periods requiring the Services to notify spouses of retired members...
The appropriate Air Force office evaluated applicant's request and provided an advisory opinion to the Board recommending the application be denied (Exhibit C). The advisory opinion was forwarded to the applicant for review and response, within 30 days (Exhibit D). DAVID C. VAN GASBECK Panel Chair Exhibits: A.
The appropriate Air Force office evaluated applicant's request and provided an advisory opinion to the Board recommending the application be denied (Exhibit C). d. There were no provisions in the laws during these open enrollment periods requiring the Services to notify spouses of retired members if the member did not enroll. However, if the decision of the Board is to grant relief, the decedent's record should be corrected to show on 21 Sep 72 he made an SBP election for spouse...
He could have elected former spouse SBP coverage for her during the 1992 open enrollment. However, spouse premiums could be terminated following divorce if the member additionally selected Option 4. He could have elected former spouse SBP coverage for her during the 92 open enrollment.
AF | BCMR | CY2008 | BC-2008-01092
The applicant and member were married again on 14 Feb 75, however he did not request SBP coverage be reestablished on the applicant's behalf within the first year of their marriage, or during subsequent open enrollment periods. The SBP Election Certificate, provided by the applicant reflects he elected spouse and child SBP coverage on 11 Jan 80; however, the election was invalid because it was not completed during the authorized open enrollment period of one year. Members who were...
AF | BCMR | CY2003 | BC-2002-03764
_________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPTR recommend that applicant’s request be denied and stated that there is no evidence of Air Force error or injustice, or merit in fact, nor basis in law to approve this case. Briefing material used at the time the member completed his RSFPP election clearly stated that “dependents acquired after you retire are not eligible to receive Family Protection Plan annuity payments,” payments would only...
AF | BCMR | CY2007 | BC-2007-01439
Had the member elected SBP coverage based on full retired pay, the monthly cost would have been approximately $157 at the time of his death and the annuity would have been no less than $1,335. Furthermore, the Air Force may not pay an SBP annuity to the applicant because the member retired before the implementation of the SBP and he did not choose to provide SBP coverage on her behalf. It is possible that since the premiums were still being deducted from the member’s retired pay after the...
AF | BCMR | CY2013 | BC-2013-00641
With the help of his attorney, he prepared all the necessary documentation to properly claim the SBP entitlement and submitted this information to DFAS. Additional relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Her father enrolled in the SBP and subsequently elected maximum spouse and child coverage during an SBP open enrollment, and had a Helpless Child. Her mother predeceased her father by approximately...