RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01841
				INDEX CODE:  137.00

	APPLICANT		COUNSEL:  NONE

	SSN		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her late-husband's records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity.

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APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust and the evidence submitted in support of the appeal are at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force. 

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AIR FORCE EVALUATION:

AFPC/DPPTR states that Public Law (PL) 99-145, 8 Nov 85, required written concurrence of the spouse if the retiree elected less than full spouse SBP coverage.  If the spouse nonconcurs in the election, coverage will be established on the spouse's behalf by operation of law.

DPPTR neither confirms nor denies the applicant's contention that she was miscounseled.  However, it is noted that it is the responsibility of the retiring service member to elect the best coverage for his family; and that the spouse has the right to concur or nonconcur in the service member's decision in electing SBP.  The applicant’s signature on the form concurring with the election certifies she had received information which explained the options available and the effects of those options. 

The SBP counselors normally complete the necessary forms with as much data as available, but it is the service member's responsibility to ensure the information is valid and current.  It is unfortunate the applicant's deceased son's information was on the form and the form was not destroyed as she allegedly requested; however, this does not invalidate the service member's election.

Since it has been more than six years since the service member's death, the applicant can not be paid an SBP annuity even if the service member's records were corrected to reflect he elected coverage prior to his retirement.  The Comptroller General decisions (B-243146, B-243147, and B-243148, 21 May 92) upheld the claim on which the Barring Act has expired may not be resurrected.  The  six-year limitation  on  this case  expired on 2 Mar 99.  DPPTR, based on the evidence provided, recommends the request be denied.

A complete copy of the evaluation is attached at Exhibit B

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 17 Aug 01, for review and response.

On 25 Sep 01, the applicant requested that her case be temporarily withdrawn to aid in gathering documentation to substantiate her request.

On 25 Oct 01, the applicant requested her application be resubmitted for consideration for correction of her late-husband's military records.  She submitted with her request a letter from Ms. XXX., Casualty Officer and Col XXX., her supervisor (Exhibit D).

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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 probable error or injustice.  We took notice of the applicant's complete submission, to include the supporting statements from her supervisor and the Casualty Assistance Officer, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not sustained her burden of establishing that she has been the victim of an error or an injustice.  While we can sympathize with the applicant’s loss of her son and the resulting anguish she was suffering at the time she completed the SBP notification and concurrence form, AF Form 1267, we find insufficient evidence to conclude that she was unaware of the implications of her signature on the form.  Therefore, in the absence of substantive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered this application in Executive Session on November 20, 2001, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 6 Apr 01, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 6 Aug 01 w/atchs.
	Exhibit C.	Letter, SAF/MIBR, dated 17 Aug 01.
	Exhibit D.	Letter, Applicant, dated 25 Sep 01.
	Exhibit E.	Applicant’s Response, dated 25 Oct 01 w/atchs.