RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00517
		INDEX CODE:137.00

	APPLICANT (DECEASED)	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 Retired Serviceman's Family Protection Plan (RSFPP) annuity.

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APPLICANT CONTENDS THAT:

She should be awarded the annuity based on the fact that the premiums were paid with the understanding that she would receive the annuity.

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

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the deceased member’s military records, are contained in the letter prepared by the appropriate office of the Air Force attached at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPPTR states Public Law (PL) 87-381 established RSFPP and it was in effect when the servicemember retired; it did not allow for spouse coverage to be transferred to another person upon the death or divorce of the original beneficiary, however, the law allowed the servicemember to stop the RSFPP premium payments in the event the beneficiary lost eligibility.

The Survivor Benefit Plan (SBP) was established by PL 92-425 on 21 Sep 72, authorizing a 12-month enrollment period, which was later extended to 18-months, for retired servicemembers to elect coverage.  Three additional open enrollments were authorized by PLs 97-35 (1 Oct 81 -30 Sep 82), 101-89 (1 Apr 92 - 31 Mar 93), and 105-261 (1 Mar 99 - 29 Feb 00).  Each servicemember was notified by direct mail of the opportunity to enroll during the open enrollment periods, also the Afterburner, USAF News for Retired Personnel, published during these timeframes was forwarded to the servicemember's address maintained by the finance center.  The Afterburner contained points of contacts to obtain additional information regarding SBP.  There were no provisions in the law at that time to notify spouses if the servicemember did not elect coverage.  

The microfiche records at the Air Force Accounting and Finance Center (AFAFC) from December 1978 (the oldest retired pay records in existence) shows that prior to the servicemember's retirement he elected spouse and child RSFPP coverage (with option 4).  The servicemember was divorced, and DPPTR was unable to verify his divorce date.  There is no evidence in the servicemember's records to show he informed AFAFC of his change in marital status or requested the RSFPP premiums be terminated.  The Defense Enrollment Eligibility Reporting System (DEERS) records reflect the servicemember married the applicant on 15 Sep 72.  There is no evidence that the servicemember elected SBP during any of the authorized open enrollments.

DPPTR recommended that the request be denied.  However, if the Board recommends granting the request, the decedent’s record should be corrected to show the servicemember elected SBP spouse only coverage based on full retired pay effective 21 Sep 72.

A complete copy of the evaluation is 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 26 Apr 02, 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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. While it is a fact that the service member was enrolled in RFSPP, he was apparently divorced from his first spouse, for whom this coverage was elected; and secondly, RFSPP is not transferable from one beneficiary to another.  Further, the service member had four opportunities during authorized open enrollments to elect SBP coverage for the applicant, but failed to do so.  The applicant has failed to sustain the burden of proof that she was the victim of an error or injustice.  It is possible that the service member believed that since he continued paying RFSPP premiums the applicant would be paid an annuity.  However, we can find no proof of the service member's divorce or his marriage to the applicant.  Therefore, if the applicant provides a valid marriage certificate and proof of the service member's divorce, the Board would be willing to review her application for possible reconsideration.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 AFBCMR Docket Number 02-00517 in Executive Session on 16 August 2002, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 28 Jan 02, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 17 Apr 02.
	Exhibit C.	Letter, SAF/MRBR, dated 26 Apr 02.