RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00895
				INDEX CODE:  137.00

	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be allowed to terminate spouse coverage under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

His wife is in stage 3 of Alzheimer's disease and is being assisted by state programs.  In order to continue to receive state assistance, her income cannot exceed $300.00 a month.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant retired on 1 Aug 64 and did not elect SBP at that time.  During the open enrollment period authorized by Public Law (PL) 101-89, the applicant elected spouse only coverage, maximum annuity, plus a 20 percent level of Supplemental SBP (SSBP), to be effective on 1 May 92.   

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AIR FORCE EVALUATION:

AFPC/DPPTR states that an SBP election cannot be arbitrarily terminated as long as the beneficiary remains eligible.  PL 105-85 authorized service members, who were retired more than two years as of 17 May 98, a one-year window during which they could disenroll from SBP (17 May 98 - 16 May 99).  The service member had to complete a DD Form 2656-2, Survivor Benefit Plan (SBP) Termination Request, with the notarized signature of the beneficiary concurring to terminate the SBP coverage.  The applications from members whose spouses were incompetent were 
reviewed by the Secretary of Air Force (SAF) and, if the request was legally sufficient, disenrollment was permitted.

Currently, laws governing SBP provide no provision to terminate coverage based on a beneficiary's medical condition.  The applicant had the opportunity to disenroll from SBP during the period authorized by PL 105-85.  Also, there were resources to obtain information on the procedures to disenroll from SBP.  Information was forwarded to his address of record, where he continues to reside, which included the May 98 issue of the Afterburner, News for USAF for Retired Personnel, which contained information and points of contact, as well as the DD Form 2656-2 to aid in disenrolling from SBP.  To provide the applicant additional time to terminate his SBP coverage would be unfair to other members in similar situations, therefore they recommend denying the applicant’s request.

A complete copy of the evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 Apr 02, for review and response.  As of this date, no response has been received by this office.

On 22 Aug 02, the AFBCMR Staff, at the request of the Board, forwarded a letter to the applicant requesting he provide information regarding if guardianship has been established for his wife and clarification if the income requirement was regulated by state law or was it a policy of an agency within the state (Exhibit D).

In support his application the applicant submitted an excerpt of the Arizona Long Term Care System (ALTCS) Manual regarding eligibility and income criteria (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 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 an injustice.  We took notice of the applicant's complete submission in judging the merits of the 
case.  The applicant’s son has advised the Board staff that his mother was diagnosed with Alzheimer's Disease approximately four years ago and has been receiving assistance from the state since June 2000 after his father (the applicant) reluctantly applied for assistance.  The majority notes that the basic intent of SBP is to provide income to the surviving spouse in the event of the retired member's death.  However, in this case, it appears that under the circumstances, the applicant's spouse will not benefit from the SBP, as it was intended.  In a typical bureaucratic snafu, as it stands now, the surviving spouse would receive the SBP payment; however, not only will this payment be insufficient to pay for the cost of her care at an assisted living facility, her income will exceed the threshold allowed by Arizona and she will apparently forfeit all income in excess of $81.75 monthly in order for her to receive the state's assistance in providing for her future care.  In the majority's opinion, it is patently unjust that the applicant has received a reduced monthly retirement check so that he could provide for his spouse in the event of his death and yet quite possibly she will never be able to fully utilize these funds.  In consideration of the timeline involved in this case, the majority believes it is reasonable to conclude that the applicant could not have known there would have been a basis for him to disenroll from SBP under the terms of Public Law 105-85 since the disenrollment election had to be postmarked not later than 16 May 1999.  In view of the foregoing, the majority believes that any doubt should be resolved in favor of the applicant and the coverage under the SBP should be terminated and this we so recommend.

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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 15 May 1999, under the provisions of Public Law 105-85, he submitted a valid request to terminate his spouse coverage under the Survivor Benefit Plan and his request was approved by competent authority.

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The following members of the Board considered AFBCMR Docket Number 02-00895 in Executive Session on 16 August 2002, 1 October 2002 and 1 November 2002, under the provisions of AFI 36‑2603:

By majority vote, the Board recommended granting the requested relief.  XXXXX voted to deny the application but he does not 
desire to submit a Minority Report.  The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 22 Feb 02, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 1 Apr 02.
	Exhibit C.	Letter, SAF/MRBR, dated 12 Apr 02.
	Exhibit D.	Letter, AFBCMR, dated 22 Aug 02.
	Exhibit E.	Applicant's Response, undated.

AFBCMR 02-00895
INDEX CODE:  137.00

MEMORANDUM FOR THE CHIEF OF STAFF

	Under the authority of Section 1552, Title 10, United States Code, Air Force Instruction 36-2603, and having assured compliance with the provisions of the above regulation, the decision of the Air Force Board for Correction of Military Records is announced, and it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, SSN, be corrected to show that on 15 May 1999, under the provisions of Public Law 105-85, he submitted a valid request to terminate his spouse coverage under the Survivor Benefit Plan and his request was approved by competent authority.