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AF | BCMR | CY2013 | BC 2013 04695
Original file (BC 2013 04695.txt) Auto-classification: Approved

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 spouse’s 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 decedent’s 
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 member’s 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 sponsor’s 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 member’s 
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 member’s 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 member’s decision to decline SBP 
coverage as required by law, and the AFBCMR corrected the former 
service member’s 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 
applicant’s 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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