RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03122
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His Survivor Benefit Plan (SBP) coverage be terminated.

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APPLICANT CONTENDS THAT:

Through his member of congress, applicant states that he was not aware that he was enrolled in the SBP program until he received a bill for over $8000 and that he has been 100 percent disabled since 1999.

In support of his request, applicant provided a copy of a letter from the Defense Finance and Accounting Service (DFAS) in response to an inquiry from his congressman.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The Air Force stated that the applicant was married and elected child only SBP coverage based on full retired pay prior to his 12 May 83 disability retirement.  The Defense Enrollment Eligibility Reporting System (DEERS) records show that he was divorced on 4 Jan 90, and remarried on 10 Apr 92.  During the open enrollment period authorized by PL 101-189 (1 Apr 92 – 31 Mar 93), he added his wife to his child only coverage and elected the 20 percent Supplemental SBP (SSBP) coverage.  In May 93, the applicant’s VA disability pay exceeded his Air Force retired pay.  A direct remittance account was established but the costs for SBP monthly premiums were not paid and a debt began to accumulate.  The parties divorced on 27 Feb 96.  On 17 Nov 99, the applicant received a 30 percent VA disability rating, but was rated 100 percent for unemployability.  The member was married again on 20 May 00 and his youngest child lost eligibility on 30 Jun 00.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended denial.  An SBP election is valid as long as the beneficiary remains eligible.  Public Law (PL) 96‑402, 9 Oct 80, permits members, who have been rated 100 percent disabled by the Department of Veterans Affairs (VA) for five continuous years immediately following retirement, or ten consecutive years if rated 100 percent after retirement, to withdraw from SBP.  They are permitted to withdraw because their deaths will be presumed to be service-connected; therefore, the surviving spouses will be entitled to monthly Dependency and Indemnity Compensation (DIC) payments from the VA.  DIC reduces an SBP spouse annuity, dollar-for-dollar.  If a member withdraws under this provision, there is no immediate refund of premiums; however, applicable spouse premiums paid by the member can be refunded to the spouse following the member’s death.  To withdraw from the SBP under this provision, the eligible member must submit a written request to DFAS with the beneficiary’s notarized consent.  Withdrawal is effective the month DFAS receives the request.

SBP spouse coverage is suspended when the spouse loses eligibility.  PL 99-145 allows a retiree to elect not to resume coverage for a subsequently acquired spouse; however, the new spouse will be automatically covered at the previous level on the first anniversary of the marriage if the member takes no action before that date.

PL 105-85, 18 Nov 97, authorized members, who were retired more than two years as of 17 May 98, a one-year window during which they could arbitrarily disenroll from the SBP (17 May 98 – 16 May 99).  Retirees had to complete the DD Form 2656-2, Survivor Benefit Plan (SBP) Termination Request, and obtain the beneficiary’s notarized consent.

It is unreasonable to believe the applicant’s claim that he did not realize he had SBP following the first anniversary of his marriage since he received bills for the SBP premiums as early as Oct 01 when he notified DFAS of his present address.  Unless he maintains the 100 percent rating from the VA for ten continuous years, he is ineligible to withdraw from the Plan under PL 96‑402.  Further, even though the applicant submitted a termination request on 12 Mar 02, it was invalid because it was not received during the required time limit [17 May 98-16 May 99].  PL 105-85 contained no provision for waiving or extending an additional opportunity to terminate participate.  Finally, to provide the applicant an additional opportunity to terminate SBP coverage is not merited and would be inequitable to other retirees in similar situations.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant stated that he received a 70 percent VA disability rating, not 30 percent, and the VA would not even consider unemployability until you reached 70 percent with at least 40 percent in one area and have been unemployed due to your disability for a period of time.
He further states that he never received any bills, statements, or correspondence from the DFAS Cleveland office at any time prior to Oct 01.  He knew he was not receiving retired pay, because of the law that prohibits a servicemember from receiving concurrent pay of retirement and VA disability.  He, therefore, had no reason to check and see if he had SBP.
Applicant’s complete response is at Exhibit D.

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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.  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 recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 02-03122 in Executive Session on 21 January 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Mr. Roscoe Hinton Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Sep 02, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPPTR, dated 8 Nov 02, w/atchs.
    Exhibit C.  Letter, AFBCMR, dated 15 Nov 02.
    Exhibit D.  Letter, Applicant, dated 21 Nov 02, w/atch.