RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03883
		INDEX CODE:  137.04

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Applicant is the ex-spouse of the former service member who is requesting corrective action to reflect that he elected spouse and child coverage thereby allowing their daughter access to Survivor Benefit Plan (SBP) payments.

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APPLICANT CONTENDS THAT:

At retirement, her now deceased, ex-spouse, suffering from brain cancer and impending blindness, did not have the mental capacity to comprehend or make judgements regarding SBP election.  She contends that she was not aware of the rules that govern SBP and therefore could not have effective input to the election process.

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

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STATEMENT OF FACTS:

The deceased member contracted his enlistment in the Regular Air Force on 13 January 1987.  A 15 October 1990 Physical Evaluation Board found that the member should be permanently retired at a compensable rating of 100%.  He suffered from a non-resectable grade II-II astrocytoma and was not expected to improve.  Member was medically retired on 29 November 1989 as an Airman 1st Class (E-3) after serving 1 year, 10 months and 17 days of active duty.

The deceased member elected spouse only SBP coverage based on full, retired pay effective 30 November 1988.  On 14 July 1991, a daughter was born to the applicant and decedent.  There is no evidence that the decedent notified the finance center of his daughter’s birth or his intention to add her to the Plan.  The applicant and decedent were divorced on 1 September 1993, and the deceased member was not required to maintain SBP coverage on the applicant.  The deceased member neglected to inform finance officials of his divorce and, consequently, SBP premiums continued to be withheld from his retirement pay until his death on 3 December 2000.

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AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommends denial.  DPPTR states that the decedent did not submit a valid request during the allotted time to do so after the birth of a child (one year), nor did he take advantage of an open enrollment period during 1999-2000 to make the addition.  In hindsight, DPPTR argues that the member did not survive for the mandatory two-year period beyond the open enrollment anyway and therefore his daughter would not have been eligible for an annuity.  

DPPTR maintains that there is no evidence of error or injustice in this case.  Their advisory is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 17 January 2003 for review and comment within 30 days.  As of this date, there has been no response 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, there was no evidence presented to show that the member did not have the mental capacity to make a reasoned decision regarding child coverage during the one-year time period following the child’s birth.  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 BC-2002-03883 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 Oct 02, w/atchs. 
    Exhibit B.  Decedent's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPTR, dated 9 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Jan 03.