RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02773
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
Her deceased husbands records reflect he opted for the
Survivors Benefit Plan (SBP) and that she is now eligible for
it due to his death.
APPLICANT CONTENDS THAT:
It was her impression her husband selected SBP upon retirement,
but having been informed he did not, she is at a loss as to why.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 15 Jan 62, her husband entered the Regular Air Force.
On 31 Jul 82, he received an honorable discharge, and was
credited with 20 years, 6 months and 16 days of active service.
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. Defense Enrollment Eligibility
Reporting System (DEERS) records show the applicant and the
decedent were married on 27 Jul 63. Defense Finance and
Accounting Service (DFAS) records indicate that the member
declined SBP coverage prior to his 1 Aug 82 retirement. The
members election form could not be located by DFAS-Cleveland
Center (DFAS-CL), and there is no evidence the required notice
was or was not sent to the applicant. The member died on 16 Jun
14.
The intent of the spouse notification requirement was to ensure
spouses, upon the sponsors death, didnt learn for the first
time they werent covered by SBP. While the decedents retired
pay records contain no evidence the applicant received notice,
review of SBP management historical files reveal the Air Force
Accounting and Finance Center (AFAFC) did not routinely capture
or retain that document. Nevertheless, there is a strong
presumption that administrators of the Air Force, like other
public officers, discharged their duties correctly, lawfully,
and in good faith. The absence of a copy of the notification
letter is not a matter of malfeasance; rather, it is a
reflection of AFAFCs failure to understand the importance of
these letters, or to retain them in a retrievable format.
Public Law (PL) 92-425, which established the SBP effective 21
Sep 72, required the spouse be informed when a member declined
or elected less than maximum spouse coverage. The U.S. Court of
Claims has consistently ruled that widows of members retiring
after SBPs implementation, who were not given notice of their
sponsors election, are entitled to full SBP coverageBarber 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 provide their written concurrence in the election
until passage of PL 99-145, which applied only to members
retiring on or after 1 Mar 86.
On 12 Aug 14, DPFFF requested the applicant provide a sworn
statement under penalty of perjury that she did not receive the
required notice. To date, the applicant has not responded to
our request. Receipt of a sworn statement satisfies the basic
parameters of a non-notification claim for Barber type cases.
The complete DPFFF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 10 Oct 14 for review and comment within 30 days
(Exhibit D). As of this date, no response has been received by
this office.
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 an error or injustice. We took
notice of the applicants complete submission, to include copies
of the applicants husbands DD Form 214, retirement special
order, marriage and death certificates, and armed forces
identification card, 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 its rationale as the
basis for our conclusion the applicant has not been the victim
of an error of injustice. The Board would be willing to
reconsider her request upon receipt of the applicants affidavit
stating she did not receive the required SBP notice. However,
in the absence of such an affidavit, we are unable to recommend
granting the requested relief.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and the
application will only be reconsidered upon the submission of
newly discovered relevant evidence not considered with this
application.
The following documentary evidence AFBCMR Docket Number
pertaining to BC-2014-02773 was considered:
Exhibit A. DD Form 149, dated 30 Jun 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPFFF, dated 28 Aug 14.
Exhibit D. Letter, SAF/MRBR, dated 10 Oct 14.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 | CY2013 | BC-2013-00672
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. 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. ________________________________________________________________ THE...
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 | 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-2012-03698
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...
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...
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. ...
AF | BCMR | CY2013 | BC 2013 04033
AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, indicating there is no record that the required notice for spouses to concur in the SBP election was sent to the applicant. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the recommendation that SBP entitlement is contingent upon recovering the premiums her deceased husband would have paid, had he made the elections at the time of his retirement. Exhibit E. Letter, Congressman, dated 10 Jun 14, w/atchs.
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...