RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-03764

			COUNSEL:  None

			HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show she is entitled to a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She should receive 55 percent of his retirement pay.

In support of her request, she submits a personal letter, a copy of her deceased husband's certificate of death, marriage license, DD Form 214, a letter from DFAS, and a copy of the Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP).

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

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member was married and elected spouse only coverage (with Option 4) under the Retired Serviceman’s Family Protection Plan (RSFPP) for his previous wife prior to his 1 Aug 67 retirement.  

The applicant and former member was married on 1 Feb 75, more than seven years after he retired from the Air Force.  The deceased member failed to advise the finance center of the change in his marital status.  There is no evidence the deceased member elected SBP coverage during any of the three open enrollment periods, which occurred after his marriage to the petitioner.  Records reflect that RSFPP premiums of approximately $14 per month were erroneously deducted from the deceased member’s retirement pay from the date his previous marriage was terminated.  The former member died on 16 Mar 02.  

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR recommend that applicant’s request be denied and stated that there is no evidence of Air Force error or injustice, or merit in fact, nor basis in law to approve this case.  He had to purposefully elect the more expensive RSFPP coverage (Option 4), which permitted him to stop paying RSFPP premiums in the event his wife died, or they divorced.  However, we cannot determine the reason for the decedent’s failure to advise the finance center of the loss of his previous wife, in as much as documentation of the change in his marital status would have restored the RSFPP costs to his retired pay.  

Regardless of the continuation of RSFPP premium deductions, it was unreasonable for the decedent or the applicant to assume RSFPP coverage would have been extended to her following their marriage.  Briefing material used at the time the member completed his RSFPP election clearly stated that “dependents acquired after you retire are not eligible to receive Family Protection Plan annuity payments,” payments would only be made “to your widow (who was your lawful wife at the date of your retirement),” and the initial value of the annuity was the amount a participant’s “widow would receive for the rest of her unmarried life.”  Furthermore, it was groundless for them to assume the applicant would be entitled to 55 percent of the member’s retired pay in the event of his death, or that SBP coverage would have been automatically established on her behalf.  The RSFPP annuity was not increased after the member was released from active duty, but it was not reduced when a survivor attained age 62.  However, a surviving spouse receives SBP payments at the 55 percent level only until they attain age 62.  Thereafter, the amount of the SBP annuity is reduced to 35 percent of the base amount if the member served on active duty after 31 Dec 56.

There is no legal authority for the Air Force to pay this petitioner an RSFPP annuity because the decedent was no longer a bona fide participant and she was not a legitimate RSFPP beneficiary.  Furthermore, the Air Force may not pay an SBP annuity to her for the member retired before the implementation of the SBP and he did not choose to provide SBP coverage on her behalf.  

However, if the Board’s decision is to grant relief, the decedent’s record should be corrected to show on 21 Sep 72 he made an SBP election for spouse only coverage based on full retired pay under PL 92-425; his previous wife lost eligibility 

(date to be determined); and the applicant became the eligible spouse beneficiary effective 1 Feb 76.  Approval should be contingent upon the recovery of premiums the decedent should have paid if he had made the election at that time.

AFPC/DPPTR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on 10 Jan 03 for review and comment within 30 days. As of this date, no response has been received by this office.

_________________________________________________________________

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 an error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that her request should be granted.  The former member retired on 1 August 1967 and elected spouse only coverage under the RSFPP for his previous wife.  However, there is no documentation of the reason for the end of his first marriage.  There is no evidence the former member elected SBP coverage during any of the three open enrollment periods that occurred after his marriage to the applicant.  We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden that she has suffered either an error or an injustice. In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought

4.	Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief.  The former member and applicant married on 1 February 1975, but he failed to advise the finance center of the change in his marital status.  The records reflect that RSFPP premiums of approximately $14 per month were erroneously deducted from the former member’s pay until his     16 March 2002 death, even though he had no eligible beneficiary.  Therefore, it is the Board's opinion that the former member should be entitled to a total refund of premiums. In view of the above, we recommend that the records of the deceased member be corrected to the extent indicated below. 

_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to FORMER MEMBER be corrected to show that on          1 September 1972, he notified the Air Force Accounting and Finance Center of his marriage termination and that his beneficiary is entitled to reimbursement of all premiums paid into the Survivor Benefit Plan after 1 September 1972.

_________________________________________________________________

The following members of the Board considered Docket Number 02-03764 in Executive Session on 8 April 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Nov 02, w/atchs.
   Exhibit B.  Letter, HQ AFPC/DPPTR, dated 19 Dec 02.
   Exhibit C.  Letter, SAF/MRBR, dated 10 Jan 03.