RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05553
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His records be corrected to show that he elected Survivor
Benefit Plan (SBP) spouse coverage.
APPLICANT CONTENDS THAT:
He was informed there was nothing else required at the time of
his retirement
On 22 Dec 77, he married his current wife. In Mar 1978, he
filled out the form to make her his SBP beneficiary and mailed
the form to the Department of Defense (DOD). He did not keep a
copy of the form for his records.
On 17 Dec 13, he called to check on his SBP coverage and was
told that it had never changed. He is trying to get everything
in order as he is in poor health. He is 84 years old and has a
heart problem, a severe case of Chronic Obstructive Pulmonary
Disease (COPD), and has had colon cancer surgery.
The applicant provides no explanation as to why his failure to
timely file should be waived in the interest of justice.
The applicants complete submission, with attachment, is at
Exhibit A.
STATEMENT OF FACTS:
On 1 Oct 69, the applicant retired.
On 22 Dec 77, the parties were married.
Public Law 92-425 established the SBP on 21 Sep 72 and
authorized an enrollment period for retired members to elect SBP
coverage. Public Laws 97-35, 101-189, 105-261 and 108-375 later
authorized four additional open enrollment periods (1 Oct 81
30 Sep 82, 1 Apr 92 - 31 Mar 93, 1 Mar 99 -29 Feb 00 and 1 Oct
05 - 30 Sep 06, respectively. During all open enrollment
periods, retirees were advised by direct mail of their
eligibility to make an election. There were no provisions in
these laws requiring the Services to notify a spouse if the
member did not enroll. Federal Appeals Court DecisionAppeal
85-927, Helen Passaro v. U.S. held that the notice provision
does not apply to a member already entitled to retired or
retainer pay on 21 Sep 72.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends denial. There is no evidence of Air Force
error or injustice in this case and no basis in law to grant
relief. The applicants failing health does not determine his
wifes eligibility for the SBP. The applicant had four
opportunities to elect SBP on his wifes behalf but failed to do
so. SBP is similar to commercial life insurance in that an
individual must elect to participate and pay the associated
premiums in order to have coverage. Furthermore, the applicant
offers no explanation for delaying (over 36 years since his
marriage) in seeking correction. Coverage for his spouse can
only be provided if Congress authorized another open enrollment.
Providing the applicant an additional opportunity to elect SBP
coverage would be inequitable to other retirees in similar
situations and is not justified by the facts.
The complete DPFFF evaluation is at Exhibit B.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 14 Feb 14, a copy of the Air Force evaluation was provided to
the applicant for review and comment within 30 days (Exhibit C).
As of this date, this office has not received a response.
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. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. We took notice
of the applicant's complete submission in judging the merits of
the case; however, we agree with the opinion and recommendation
of the Air Force office of primary responsibility and adopt the
rationale expressed as the basis for our conclusion that the
applicant has not been the victim of an error or injustice.
Therefore, in the absence of evidence to the contrary, we find
no basis to recommend granting the relief sought in this
application.
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that
that the application will only be reconsidered upon the
submission of newly discovered relevant evidence not considered
with this application.
The following members of the Board considered AFBCMR Docket
Number BC-2013-05553 in Executive Session on 9 Oct 14, under the
provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Nov 13.
Exhibit B. Letter, AFPC/DPFFF, dated 29 Jan 14.
Exhibit C. Letter, SAF/MRBR, dated 14 Feb 14.
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