DOCKET NUMBER: BC-2012-02486
RECORD OF PROCEEDINGS
COUNSEL: NONE
HEARING DESIRED: NO
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
________________________________________________________________
APPLICANT REQUESTS THAT:
The decedent’s record be corrected to show that he elected
spouse only coverage under the Survivor Benefit Plan (SBP)
________________________________________________________________
APPLICANT CONTENDS THAT:
Neither she nor her husband was aware of the requirement to
notify the Defense Accounting and Finance Service (DFAS) of
their marriage and their desire to participate in the SBP
annuity. Had they known, they would have sent the appropriate
documentation to DFAS. It seems unfair that she is
automatically ineligible to apply for SBP since her husband
never participated in the program. He never met the eligibility
criteria to do so and he never declined coverage.
In support of her appeal, the applicant provides the former
member’s death certificate, DD Form 2656-7, Verification of
Survivor Annuity, W-4P, Withholding Certificate for Pension or
Annuity Payments and a direct deposit form.
The applicant’s complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The decedent is a former member of the Air Force who retired on
1 July 2006.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends denial. An unmarried member who elects
child only coverage, or declines SPB at retirement may provide
coverage for the first spouse acquired following retirement.
The election must be submitted before the first anniversary of
the marriage. If the member fails to elect SBP coverage for an
eligible beneficiary within the time prescribed by law, coverage
may be provided only in the event Congress authorizes open
enrollment.
The Defense Enrollment Eligibility Reporting System (DEERS)
reflects the decedent was divorced and declined SPB coverage
prior to his 1 July 2006 retirement. He and the applicant
married on 31 December 2007. There is no evidence the decedent
advised DFAS of his change in marital status within the first
year of his marriage. He failed to submit a valid request to
elect SBP coverage on the applicant’s behalf within the time
prescribed by law. He died on 16 May 2012; there is no
provision in the law to posthumously establish SPB coverage on
the applicant’s behalf.
It is the member’s right and responsibility to elect SBP
coverage for a spouse acquired after retirement. The
Afterburner, News for USAF Retired Personnel, published after
the applicant’s marriage contained regular reminders for members
concerning required actions to provide SBP coverage following
changes in marital and family status. These issues of the
Afterburner were mailed to the correspondence address the
decedent provided the finance center.
There is no evidence of an error or injustice and no basis in
the law to provide relief in this case. Should the Board
recommend granting the applicant’s request, approval should be
contingent upon recoupment of all applicable premiums.
The complete DPSIAR 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 26 July 2012, for review and comment within 30 days
(Exhibit C). As of this date, this office has received no
response.
________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by
existing law or regulations.
2. The application was timely filed.
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 the
recommendation of the Air Force office of primary responsibility
2
and adopt its rationale as the basis for our conclusion that the
decedent failed to make a clear election to participate in the
SBP within the one year time period as prescribed by law.
Regrettably, we find no basis to grant the relief sought in the
application.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that
the application was denied without a personal appearance; and
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-2012-02486 in Executive Session on 12 February 2013,
under the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 30 May 12, w/atchs.
Exhibit B. Letter, AFPC/DPSIAR, dated 16 Jul 1S.
Exhibit C. Letter, SAF/MRBR, dated 16 Jul 12.
Panel Chair
, Panel Chair
, Member
, Member
3
AF | BCMR | CY2010 | BC-2009-04138
DFAS-CL received a letter from the former service member on 4 Nov 94, requesting SBP coverage be established on behalf of the applicant; however, he died on 20 Mar 95, seven months before the end of their first year of marriage. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the...
AF | BCMR | CY2013 | BC-2012-01572
_________________________________________________________________ APPLICANT CONTENDS THAT: Her late husband paid SBP premiums for his former spouse’s SBP coverage from January 1996 to June 2004, even though the former spouse remarried in September 2003 before her 55th birthday. The complete DFAS evaluation is at Exhibit B. Exhibit D. Letter, SAF/MRB Legal Advisor, dated 15 Nov 12, Exhibit E. Letter, AFBCMR, dated 4 Dec 12, w/atch.
AF | BCMR | CY2012 | BC-2012-01102
Although, his spouse had two children, he submitted a request for spouse only coverage under the SBP within the first year of their marriage. A service member, who has no eligible beneficiary at retirement, may provide coverage for the first spouse and/or child acquired following retirement. Federal law does not require a service member to have physical custody of an eligible dependent child in order to elect SBP coverage on the child's behalf.
AF | BCMR | CY2013 | BC-2012-02487
DFAS records reflect the applicant did not report the divorce until 22 February 2010, but at that time, the spouse’s portion of SBP coverage was retroactively suspended. On 2 August 2010, the applicant notified DFAS that he had a new child, but when he remarried on 23 September 2010, there was no evidence he properly terminated spouse coverage within the first year of their marriage. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree...
AF | BCMR | CY2012 | BC-2011-05023
However, they were married on 3 Jan 2011. In order for a spouse, who married a member after his/her retirement, to be considered eligible for the SBP annuity, the post-retirement marriage must endure for one full year from the date of marriage. Although the applicant provides evidence that recognizes their relationship as a marriage, the law requires a member to be married for one full year before the widow is eligible for SBP payments, assuming the member...
AF | BCMR | CY2013 | BC-2011-02061
_______________________________________________________________ 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. 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. To date, a response has not been received (Exhibit C).
AF | BCMR | CY2012 | BC-2012-01351
DPSIDAR states that there is no evidence of Air Force error in this case; however, in the absence of a competing claimant and to prevent a possible injustice, they recommend the decedent’s record be corrected to reflect he elected former spouse coverage based on full retired pay, naming APPLICANT as the former spouse beneficiary, effective 11 January 2005. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the...
AF | BCMR | CY2008 | BC-2008-02569
His record contains a copy of a 28 Apr 93 letter from DFAS-DE advising him, among other things, that the 12 Feb 93 open enrollment election he submitted was “invalid” because block 10 did not indicate the base amount upon which he wished to establish coverage. His open enrollment election form contained what appears to be the monthly SBP premium amount he thought would be collected from his retired pay if he elected coverage on a reduced level of retired pay. Exhibit C. Letter, SAF/MRBR...
AF | BCMR | CY2007 | BC 2007 03362
The member and the applicant were allegedly married in Tijuana, Mexico on 8 Jun 82, and he elected spouse only coverage based on a reduced level of retired pay during the open enrollment authorized by Public Law (PL) 97-35 (1 Oct 81 30 Sep 82). The Air Force office of primary responsibility has recommended that we consider voiding the decedent's 23 Sep 82 election for SBP coverage for the applicant, suggesting that the "erroneous deductions of SBP premiums for spouse coverage be refunded...
AF | BCMR | CY2011 | BC-2011-02755
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. In this case, although this applicant claims she does not remember seeing the notification letter when the decedent declined SBP coverage prior to his retirement, clearly the spouse notification letter was sent to her by the Air Force as required by law. ...