AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
DOCKET NUMBER: BC-2012-02061
COUNSEL: NONE
HEARING DESIRED: NO
IN THE MATTER OF:
XXXXXXX (DECEASED)
XXXXXXX (APPLICANT)
_______________________________________________________________
APPLICANT REQUESTS THAT:
Her deceased spouse’s (decedent) records be corrected to show
he made a timely election for spouse coverage under the
Survivor Benefit Plan (SBP).
_______________________________________________________________
APPLICANT CONTENDS THAT:
When her husband retired he did not discuss his SBP decision
with her. Additionally, she did not receive any correspondence
from the Air Force informing her of his decision to decline the
SBP.
In support of her request the applicant provides a sworn
statement and copies of the decedent’s DD Form 214, Report of
Separation from Active Duty, Death Certificate, and their
Marriage Certificate.
The applicant's complete submission, with attachments, is at
Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
According to the information provided by the Air Force office
of primary responsibility, the applicant and the decedent were
married on 29 May 1961. Records indicate the member declined
SBP coverage prior to his 1 Jul 1978 service retirement.
Neither the member's election form, nor evidence that the
required notice was or was not sent to the applicant could be
located. The member died on 24 May 2012.
Public Law (PL) 92-425, which established the SBP effective
21 Sep 1972, required that the spouse be informed when a
married member declined or elected less than maximum spouse
coverage. 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-Barber v. U.S., 676 F.2d 651 (CI. Ct. 1982);
Dean v. U.S., 10 Cl. Ct. 563 (1986); and Kelly v. U.S.,
826 F.2d 1049 (Fed Cir. 1987)--commonly called Barber cases.
There was no requirement for spouses to concur in the SBP
elections until passage of PL 99-145 and applies only to
members retiring on or after 1 Mar 1986.
_______________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends approval. DPSIAR states the U.S. Court
of Claims has consistently ruled that widows who are not
given notice of their sponsor's election are entitled to full
SBP coverage—Barber v. U.S., 676 F.2d 651 (CI. Ct. 1982; Dean
v. U.S., 10 Cl. Ct. 563 (1986); and Kelly v.U.S., 826 F.2d
1049 (Fed Cir. 1987. In all these cases, the facts were
essentially the same as they are in this case. There was no
record the required notice was given to the applicant. After
the death of the retired member, the widow provided a sworn
statement that she did not receive notification that her
husband had declined SBP coverage. In the event relief is
granted, the unpaid contributions to the SBP that would have
been deducted from the member's retired pay through the date
of his death (approximately $75,750) will be collected from
any annuity payment (about $786 gross per month) the
applicant would be entitled to receive.
DPSIAR recommends the decedent's record be corrected to show
he elected spouse SBP coverage based on full retired pay
effective 1 Jul 1978. Approval should be contingent upon
recovery of SBP premiums the decedent would have paid had he
made the election at that time.
The complete DPSIAR evaluation is at Exhibit B.
_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 7 Aug 2012, a copy of the Air Force evaluation was forwarded
to the applicant for review and comment within 30 days. To
date, a response has not been received (Exhibit C).
_______________________________________________________________
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 a thorough
review of the facts and circumstances of this case, we agree
with the opinion and recommendation of the Air Force office of
primary responsibility that relief is warranted. Therefore, in
2
the interest of justice, we recommend the deceased member’s
record 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 on 1 Jul
1978, he elected spouse-only coverage under the Survivor
Benefit Plan (SBP) based on full retired pay, naming APPLICANT
as eligible beneficiary.
_______________________________________________________________
The following members of the Board considered this application
in Executive Session on 12 Feb 2013, under the provisions of
AFI 36-2603:
XXXXXXX, Panel Chair
XXXXXXX, Member
XXXXXXX, Member
All members voted to correct the record as recommended. The
following documentary evidence was considered in AFBCMR BC-
2012-02061:
Exhibit A. DD Form 149, dated 13 Jun 2012, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 19 Jul 2012.
Exhibit C. Letter, SAF/MRBR, dated 7 Aug 2012.
XXXXXXX
Panel Chair
3
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