RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02058

		COUNSEL:  NONE

		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

Her husband's records be corrected to show she is entitled 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 is 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, which is at Exhibit C.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR states that in the past, DPPTR recommended favorable consideration in cases in which the widow petitioners claim they were not notified of their sponsor’s SBP election and the Air Force had no evidence to refute their claims.  In a 21 May 1992 decision (B-243146, 147, and 148), the Comptroller General CG) stated that Air Force Board of Correction for Military Records (AFBCMR) action was not necessary to create SBP entitlement because of the government’s failure to inform the spouse that SBP had not been elected.  The CG concluded that while the Correction Board can change the facts in order to give rise to a claim, it cannot, by changing the facts, resurrect a claim on which the Barring Act has run.  DPPTR indicated that the Judge Advocate recommended DPPTR continue to advise the AFBCMR in these matters as they did prior to the cited Comptroller General’s decisions.  If the Board’s decision is to grant relief in this case, the decedent’s record should be corrected to show on 31 May 1982, he elected spouse SBP coverage based on full retired pay (Exhibit C).

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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 7 September 2001 for review and response.  As of this date, no response has been received by this office. 

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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.	Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After thoroughly reviewing the circumstances of this case, we are in agreement with the Air Force that the applicant is entitled to an annuity under the Survivor Benefit Plan program.  Additionally, we note that the United States Court of Federal Claims recently upheld a decision made by this Board in a similar case (Pride v. United States, 40 Fed Cl 730 (1998)).  Therefore, since the applicant was not properly advised of her spouse’s decision not to elect coverage, as required by the applicable statute, there is no dispute concerning applicant's entitlement to survivor benefits under the criteria set forth in Barber v. United States, 676 F.2d 651 (Ct. Cl. 1982).

4.	The recent holding in Pride v. United States, by the Court of Federal Claims, validates the Correction Board’s earlier decision to correct records in cases similar to applicant’s appeal, thereby entitling a surviving spouse to submit a claim for an annuity.  The Board's charter (the Act of August 2, 1946, 60 Stat. 812, 837, as amended, 10 U. S. C. 1552) authorizes the Secretary, acting through a civilian board, to 'correct any military record of that department when he considers it necessary to correct an error or remove an injustice', and provides that the department may pay 'a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits...if, as a result of correcting a record under this section, the amount is found to be due....'"  Therefore, in view of the Court of Federal Claims Court decision in Pride, we believe we continue to have the authority and the responsibility in a case such as this, upon a finding of error or injustice, to correct the record as necessary to provide full and fitting relief.  Accordingly, we recommend the records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  On 31 May 1982, he elected Survivor Benefit Plan (SBP) spouse coverage based on full retired pay.

	b.  On 1 July 1985, his widow submitted a claim for a survivor benefit annuity.

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

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 16 Jul 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPTR, dated 29 Aug 01.
   Exhibit D.  Letter, AFBCMR, dated 7 Sep 01.

                                  

AFBCMR 01-02058

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  On 31 May 1982, he elected Survivor Benefit Plan (SBP) spouse coverage based on full retired pay.

	b.  On 1 July 1985, his widow, XXXXX, submitted a claim for a survivor benefit annuity.