RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
DOCKET NUMBER: BC-2013-04695
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her spouses record be changed to add her disabled son to the
spouse only coverage under the Survivor Benefit Plan (SBP).
APPLICANT CONTENDS THAT:
Her husband opted out of the family portion of the SBP without
her knowledge or consent and because of his death being so close
to the date of when their son was born, it was impossible for
them to add him to the SBP.
The applicant's complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant was married to the decedent and had one dependent
child born on 21 November 1978. The decedent elected to decline
SBP coverage prior to his 1 August 1980 retirement. Another
dependent child was born on 4 December 1981 after the decedents
retirement.
The decedent died on 21 January 1982.
The applicant was not notified of the decedent's decision to
decline SBP coverage as required by PL 92-425, and a AFBCMR BC-
2003-00800 corrected the decedent's record on 29 April 2003 to
reflect he elected spouse only coverage under the SBP.
The applicant is currently receiving an annuity of $892.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends approval. 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. Approval
should be contingent upon recoupment of all applicable
retroactive SBP premiums. The applicant provided medical
documents stating her son was diagnosed with a permanent
disability in 1997 at the age of 15.
The U.S. Court of Claims ruled that if widows were not given
notice of the sponsors election the widows and eligible
dependent children were entitled to full SBP coverage. It is
reasonable to presume when the applicant submitted her original
request in 2003 she would have also requested the members
record to be corrected to reflect spouse and child coverage, if
she had understood the impact of his life-long eligibility to
receive SBP annuity payments. In the event relief is granted
and the Barring Act is waived, all unpaid contributions to the
SBP that would have been deducted from the members retired pay
for child coverage will be collected.
The complete evaluation is at Exhibit B.
APPLICANT REVIEW OF AIR FORCE EVALUATION:
On 27 March 2014, a copy of the Air Force evaluation was
forwarded to the applicant for review and response 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 evidence in this case, we are persuaded
that relief is warranted. We note that the applicant was not
notified of the former service members decision to decline SBP
coverage as required by law, and the AFBCMR corrected the former
service members record on 29 April 2003 to reflect he elected
spouse only coverage under the SBP. The applicant has
subsequently provided medical documents stating her son was
diagnosed with a permanent disability in 1997 at the age of 15.
We believe that when the applicant submitted her original
request in 2003, she would have also requested the record to be
corrected to reflect spouse and child coverage if she was aware
that she could have added her son at that time. Therefore, we
agree with the opinion and recommendation of AFPC/DPFFF that the
applicants record should be corrected to reflect spouse and
child coverage under SBP. Therefore, we recommend the records
be corrected as indicated below.
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to show that on
31 July 1980, he elected spouse and child coverage under the
Survivor Benefit Plan (SBP) based on full retired pay; that he
made timely notification to the Defense Finance and Accounting
Service on the birth of his son ; and that his son was
permanently disabled before age 18 and remains incapable of
self-support.
The following members of the Board considered AFBCMR Docket
Number BC-2013-04695 in Executive Session on 29 December 2014,
under the provisions of AFI 36-2603:
Although chaired the panel, in view of her unavailability,
has agreed to sign as Acting Panel Chair. All members voted to
correct the records, as recommended. The following documentary
was considered:
Exhibit A. DD Form 149, dated 27 September 2013, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 23 January 2014.
Exhibit C. Letter, SAF/MRBR, dated 27 March 2014.
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