RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00125
COUNSEL: NONE
(DECEASED)
(APPLICANT) HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her late-spouses records be corrected to reflect he made a timely
election for spouse coverage under the Survivor Benefit Plan
(SBP).
APPLICANT CONTENDS THAT:
Her late-spouse told her she was covered as the beneficiary under
SBP. She was never informed that she was not covered under SBP.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
According to the documents provided by the applicant, the former
service member retired from the Regular Air Force (RegAF) on 1 Jan
82 and passed away on 14 Mar 08.
The remaining relevant facts pertaining to this application are
described in the memorandum prepared by the Air Force office of
primary responsibility (OPR), which is included at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPFFF recommends the requested relief be granted. On
21 Sep 72, SBP was established. Under the provisions of SBP, the
spouses of married service members had to be informed when the
service member declined SBP coverage, or elected less than the
maximum level of coverage. The United States (U.S.) Court of
Claims ruled that widows of service members who retired after the
implementation of SBP, who were not given notice of the service
members election, are entitled to full SBP coverage (Barber
cases). However, spouses were not required to provide written
concurrence with SBP election until the passage of Public Law (PL)
99-145, which applied only to service members who retired after 1
Mar 86.
The applicant and the late service member were married on
8 Aug 80. According to the Defense Finance and Accounting Service
(DFAS) the late service member declined spouse SBP coverage prior
to his 1 Jan 82 retirement. DFAS could not locate the late
service members election form or find any evidence showing
whether the notice was or was not sent to the applicant. The
former service member died on 14 Mar 08.
The spouse notification requirement was intended to ensure that
spouses, upon the service members death, didnt learn for the
first time that they were not covered by SBP. The facts of this
applicants case are essentially the same as in the Barber cases,
and there is no record the notice was sent to the applicant and
she has provided a sworn statement indicating she did not receive
the notification. However, if relief is granted the unpaid
premiums ($134,600) would have to be recouped prior to the
applicant receiving the annuity.
A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states she is receiving Social Security and Death
Indemnity Compensation (DIC) and is concerned about the recovery
of the unpaid SBP premiums. She wonders how the amount owed was
determined, and if any percentage of the sum owed can be deducted
from the SBP payment; because this would assist her in determining
if she can accept the SBP if the Board grants relief.
The applicants complete response, with attachment, is at 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 error or 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 (OPR) that the former service members records
should be corrected to reflect that he made a valid election for
spouse coverage, based on full retired pay effective 31 Dec 81.
We note the applicants concerns regarding the financial hardship
she may incur due to debt for the unpaid premiums. However, the
Air Force OPR has confirmed that the monthly SPB annuity will be
applied to the debt for the unpaid premiums until the total amount
of the premiums owed are recovered and, thus, will not result in
any out of pocket costs to the applicant. Therefore, we recommend
the applicant's records be corrected as indicated below.
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to the DECEDENT be corrected to show that:
a. On 31 December 1981, he elected spouse coverage under the
Survivor Benefit Plan, based on full retired pay, naming APPLICANT
as the beneficiary, contingent upon recoupment of any applicable
premiums.
b. On 15 March 2008, his widow submitted a timely and
effective claim for survivor benefit annuity.
c. Approval should be contingent upon recovery of SBP
premiums, which must be paid prior to the applicant receiving SBP
payments.
The following members of the Board considered AFBCMR Docket Number
BC-2014-00125 in Executive Session on 6 May 15 under the
provisions of AFI 36-2603:
, Vice Chair
, Member
, Member
All members voted to correct the records as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 Jan 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPFFF, dated 13 Mar 14.
Exhibit D. Letter, SAF/MRBR, dated 5 Aug 14.
Exhibit E. Letter, Applicant, dated 10 Aug 14.
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PL 97-252 (8 Sep 82) permitted retiring members to provide SBP coverage for their former spouses under the insurable interest option. It is recommended that the deceased former members record be corrected to reflect that on 1 Mar 86, he elected to change SBP former spouse coverage under the insurable interest option to former spouse coverage under the spouse coverage option, naming the applicant as the eligible former spouse beneficiary, and she concurred in the change. THE BOARD...
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Another dependent child was born on 4 December 1981 after the decedents retirement. DPFFF states there is no evidence of Air Force error; however, to preclude an injustice, they recommend the record be corrected. The members 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.
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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. ...
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