RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01308
		INDEX CODE:  132.01
		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be entitled to receive her deceased husband's Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was not aware that she was not entitled to any of her deceased husband's benefits.

In support of her request applicant provided documents associated with her request for SBP annuity and Department of Veterans Affairs (DVA) benefits, a Certificate of Death, her Marriage Certificate, a copy of her military dependent identification card; a DD Form 214, Certificate of Release or discharge from Active Duty; and, an AF Form 1411, Extension or Cancellation of Extensions of Enlistment in the Regular Air Force/Air Force Reserve.  Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

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.  

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR reviewed applicant's request and recommends the case be returned without action.  DPPTR states that she and her husband were married on 6 Aug 66.  Defense Finance and Accounting Service (DFAS) records reflect that he declined SBP coverage prior to his 1 Nov 82 retirement.  His election form could not be located by DFAS-Cleveland Center (DFAS-CL) and there is no evidence that the required notice was or was not sent to the applicant.  The member died on 31 Dec 01.  

The U.S. Court of Claims has consistently ruled that widows who are not given notice of their sponsor's election are entitled to full SBP coverage.  On 22 Apr 02, DPPTR sent a letter to the applicant requesting that she provide a sworn, notarized statement in which she attested that she did not receive notification that her husband had declined SBP coverage at the time of his retirement and that she provide a statement acknowledging and understanding that, if her husband's records are changed, the unpaid contributions (approximately $27,660) will be collected from any annuity payment she would be entitled to receive.  She has not provided either statement.

If she were to provide the required documents, DPPTR recommends her records be corrected to show that on 31 Oct 82 he elected spouse SBP coverage based on full retired pay, contingent upon recovery of all premiums.  The DPPTR evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that at the time of her husband's retirement she was not notified that she would not be provided with any spousal benefit coverage.  She states that she understands that all unpaid provisions will be deducted from the annuity payments.  

In support of her request she provided a personal statement and a statement from her daughter.  Her complete submission, with attachment, is at Exhibit E.

_________________________________________________________________

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 error or injustice.  After thoroughly reviewing the circumstances of this case, it is our opinion that favorable consideration of the applicant's request is warranted.  We are aware of United States Court of Federal Claims rulings in which cases where surviving spouses who are not given proper notice of their spouse's declination of SBP coverage are entitled to full SBP coverage.  We note that the Air Force has indicated that there is no record the applicant was provided with the required notification.  Since there is no evidence the applicant was properly advised of her spouse’s decision not to elect coverage, as required by the applicable statute, there is no dispute concerning her entitlement to survivor benefits under the criteria set forth in Barber v. United States, 676 F.2d 651 (Ct. Cl. 1982).  The Air Force has requested that the applicant provide a sworn, notarized statement attesting that she did not receive notification of her husband's election to decline SBP coverage and understanding that the unpaid contributions will be collected from her annuity payments.  The applicant has provided a notarized statement as requested and accordingly, we recommend that her husband's service record be corrected as set forth below.  

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the FORMER MEMBER be corrected to show that on 31 Oct 82, he elected spouse-only coverage under the Survivor Benefit Plan, based on full retired pay. 

_________________________________________________________________

The following members of the Board considered Docket Number 02-01308 in Executive Session on 16 Aug 02, under the provisions of AFI 36‑2603:

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

All Exhibits should be listed here

     Exhibit A.  DD Form 149, not dated, w/atchs.
     Exhibit B.  Deceased Member's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPTR, dated 24 May 02.
     Exhibit D.  Letter, SAF/MRBR, dated 31 May 02.
     Exhibit E.  Letter, Applicant, dated 27 Jun 02.

					

			

AFBCMR 02-01308

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 31 October 1982, he elected spouse coverage under the Survivor Benefit Plan, based on full retired pay.