RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-00672
XXXXXXX (DECEASED) COUNSEL: NONE
APPLICANT: XXXXXXXX HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
She be entitled to benefits under the Survivor Benefit Plan
(SBP).
________________________________________________________________
_
APPLICANT CONTENDS THAT:
When her late husband retired, she was not included in any
discussions or decisions involving his military affairs and was
not aware that he had elected to decline SBP coverage. She now
understands that she should have received a notice from the Air
Force notifying her of his decision.
In support of her request, the applicant provides a notarized
personal statement; copies of the decedents death certificate;
marriage license, and other supporting documents.
The applicant's complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
_
STATEMENT OF FACTS:
The applicant and the service member were married on 29 Sep 56.
The service member died on 22 Jan 13.
Other relevant facts pertaining to this application, extracted
from the applicants military records, are contained in the
letter prepared by the appropriate office of the Air Force.
________________________________________________________________
_
AIR FORCE EVALUATION:
AFPC/DPSIAR recommends granting relief. They note that the
record should be corrected to show that, effective 30 Nov 76,
the decedent elected spouse only SBP coverage based on full
retired pay. Approval should be contingent upon recovery of SBP
premiums the decedent would have paid had he made the election
at that time.
Public Law (PL) 92-425, which established the SBP effective
21 Sep 72, 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 (Cl. 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 which applies only to members retiring on
or after 1 Mar 86. In this case, as in all Barber cases, the
facts are essentially the same: there is no record the required
notice was sent to the applicant and the applicant has provided
a sworn statement that she did not receive notification that the
decedent had declined SBP coverage.
Defense Finance and Accounting Service (DFAS) records reflect
the member declined SBP coverage prior to his 1 Dec 76
retirement. Neither the decedents election form, nor evidence
that the required notice was or was not sent to the applicant
could be located.
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 $132,295.00) must
be collected from any annuity payment the applicant would be
entitled to receive.
The complete AFPC/DPSIAR evaluation is attached at Exhibit B.
________________________________________________________________
_
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 21 Jun 13 for review and comment within 30 days.
As of this date, no response has been received by this office
(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 error or injustice warranting
corrective action. The Air Force office of primary
responsibility has adequately addressed the issues presented by
the applicant and we are in agreement with its opinion and
recommendation. In addition, we remind the applicant that
approval is contingent upon recovery of SBP premiums the
decedent would have paid had he made the election at that time.
Accordingly, we recommend the decedents record 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
30 November 1976, he elected spouse only coverage based on full
retired pay.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2013-00672 in Executive Session on 5 December 2013,
under the provisions of AFI 36-2603:
All members voted to correct the records, as recommended.
Although chaired the panel, in view of her
unavailability, has signed as Acting Panel Chair. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 2 Feb 13, w/atchs.
Exhibit B. Letter, AFPC/DPFFF, dated 3 Jun 13.
Exhibit C. Letter, SAF/MRBR, dated 21 Jun 13.
Acting Panel Chair
1
2
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 | CY2011 | BC-2011-00699
Public Law (PL) 92-425, which established the SBP effective 21 Sep 72, required that the spouse be informed when a married member declined or elected less than maximum spouse coverage. In this case, as in all Barber cases, the facts are essentially the same: there is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that the notification was not received. ____________________________________________________________ ____ THE BOARD...
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. ...
An AFAFC letter to the decedent, dated 7 October 1972, explained that SBP coverage had been established on his spouse's behalf in compliance with the provision of the law that required establishment of maximum spouse and child coverage if a member, such as the applicant, made no election before retirement. Documents provided by the applicant include a copy of a 7 Oct 72 letter to the decedent from the Air Force Accounting and Finance Center (AFAFC) which explained SBP coverage had been...
AF | BCMR | CY2012 | BC-2012-03698
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01382 XXXXXXX(DECEASED) COUNSEL: NONE XXXXX (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her late husbands (decedent) records be corrected to show he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP). After the death of the retired member, the widow provided a...
Backaround: Public Law (PL) 92-425, which established the SBP, required the spouse be notified when a member declined or elected less than maximum spouse coverage. Recommendation: We recommend the decedent's records be corrected to show on 31 Jan 80 he elected spouse SBP coverage based on full retired pay. PAT PEEK, DAFC Chief, Retiree Services Branch Directorate of Pers Program Management ADDENDUM TO RECORD OF PROCEEDINGS The following members of the Air Force Board for Correction...
AF | BCMR | CY2014 | BC 2014 02773
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice. As of this date, no response has been received by this office. The Board would be willing to reconsider her request upon receipt of the applicants affidavit stating she did not receive the...
The pertinent military records of the Department of the Air be corrected to - MOND H. WELLER Examiner Air Force Board for Correction of Military Records DEPARTMENT OF THE AIR FORCE WASHINGTON, DC JUN 3 0 1998 Office of the Assistant Secretary AFBCMR 98-00024 MEMORANDUM OF CONSIDERATION OF APPLICATION BEFORE THE AFBCMR SUBJECT: Having carefully reviewed this application, we agree with the recommendation of the Air Force and adopt the rationale expressed as the basis for our decision that the...
AF | BCMR | CY2013 | BC 2013 03356
She does not recall receiving a letter from the Air Force informing her of her spouses decision to decline SBP participation. There is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that the notification was not received. Exhibit C. Letter, SAF/MRBR, dated 19 Sep 13.
AF | BCMR | CY2012 | BC-2012-04821
_______________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. 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. _______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records...