RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00491
		INDEX CODE 137.03
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His child-only Survivor Benefit Plan (SBP) coverage be terminated upon his retirement from the Air Force.
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APPLICANT CONTENDS THAT:

On 23 Sep 94, he was shot in the head and was retired in the line of duty.  He was retired in the “Imminent Death” status, however, he survived and did not hear anything about SBP until 7 Nov 01.  A letter came in the mail that day demanding payment of $5176.00.  He called Cleveland and they informed him that he was signed up for SBP upon retirement.  He replied that he did not sign up because he was in a semi-coma for a week.  He called the Veteran Administration (VA) and a counselor told him he did not need that.   The VA has a form of the “SBP” that he did not have to pay for.  In addition, the VA told him that it would pay his wife a lot more money than the Air Force.  He is requesting that the SBP be terminated and all monies paid are refunded.

In support of his appeal, he has submitted a personal statement, retirement orders, Secretarial Determination of Survivor Benefit Plan Election letter, dated 1 December 1994, DD Form 2656 and a Disability Retirement message dated 26 September 1994.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 22 May 1986 for a term of 4 years.  On 23 September 1994, the applicant suffered a gunshot wound to the head.  On that same day, a board of Air Force medical officers determined that the applicant was incompetent for pay and records and was placed on the Temporary Disability Retired List (TDRL).  The Secretary of the Air Force elected, on behalf of the applicant, to provide an SBP annuity for his children based on full-retired pay effective 22 September 1994.  He served 7 years, 6 months and 21 days active service for retirement.  On 14 April 1996, he was released from the TDRL and permanently retired from the Air Force with a 100% disability retirement.

The remaining 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 at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPTR recommended denial.  The member was incompetent for pay and records prior to 23 September 1994, the date he was place on the TDRL.  His wife was designated as the next-of-kin, she requested an election for child only coverage, maximum annuity, and the SAF authorized that election to be made on the member’s behalf.  DFAS-CL established full spouse SBP coverage pending receipt of the SAF’s approval, but subsequently failed to properly convert that coverage.  Finance records indicate that the VA awarded disability compensation to the member, the award first exceeded his retired pay in September 1995, and a direct remittance account was established.  The member was found competent for pay and records on 20 January 1995.  The member submitted SBP spouse premiums directly to DFAS-CL until February 1996 when he discontinued payments and a debt of approximately $5,458 began to accrue.  The member’s child only SBP coverage was properly established by the finance center in February 2002, the monthly premium was adjusted from $65 to $14 retroactive to his retirement date, and adjustment to the debt is being processed.

The member's claim that he did not make the election is without merit.  The SAF made the election on his behalf since he was not competent to make the election himself.  However, the member could have voided the election after he was found competent in 1995, but he failed to do so within the time permitted and offers no explanation for this delay.

The AFPC/DPPTR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and stated that the Air Force doctors did not think he was going to live through the surgery.  His wife does not remember signing anything concerning SBP coverage.  He was released from the Minot hospital on 18 October 1994, and flown to Nashville to the acute rehab hospital.  He was released from there in January of 1995.  He was not receiving his retirement pay (neither was his wife).  Shortly after he was evaluated by a competence board on 15 January 1995, he went to a sub acute rehab ranch in Texas to learn how to take care of himself.  He stayed there until December 1995 and moved to Nashville TN in January 1996.  His parents were paying his bills while he was in the hospital.  He never knew he was signed up for SBP, and did not receive a bill for the SBP until November 2001. He then got in touch with DFAS-CL.  

He never got the article that DFAS-CL referred to in their letter.  Meanwhile, he moved twice in 1996, and has been living at his current address since June 1996.  He never received anything from the Air Force or DFAS except when he was taken off the TDRL and placed on the permanent disable list.  He also has a beneficiary’s consent letter requesting cancellation of SBP coverage included.

The applicant’s response is attached at Exhibit E.

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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 timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief. After reviewing the evidence of record, the Board is of the opinion that the decision made by the Secretary of the Air Force on behalf of the applicant during the Imminent Death process was the appropriate decision to be made under the circumstances and in the best interest of the applicant.  However, the Board agrees with the applicant, that when he was found competent in 1995, he was actually competent enough to make the decision to elect "no" coverage under the SBP.  Therefore, the Board recommends his records be corrected to the extent 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 on 1 February 1995, he elected to decline coverage under the Survivor Benefit Plan.

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The following members of the Board considered Docket Number 02-00491 in Executive Session on 16 August 2002, under the provisions of AFI 36-2603:

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

	Exhibit A.	DD Form 149, dated 2 Jan 02, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPPTR, dated 25 Mar 02.
	Exhibit D.	Letter, SAF/MRBR, dated 5 Apr 02.
	Exhibit E.	Applicant's Response, dated 17 Apr 02, w/atch.

		

AFBCMR 02-00491

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 on 1 February 1995, he elected to decline coverage under the Survisor Benefit Plan.