RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00654

  	COUNSEL:  NONE

  	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show that he elected spouse coverage based on full retired pay under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

Prior to his retirement, her husband intended to change his SBP election coverage to spouse only coverage based on full retired pay; however, the Air Force has failed to honor his last wish.

Her husband was advised of the procedures to change his SBP election prior to his retirement; however, due to an emergency tracheotomy on the day prior to their appointment with a casualty affairs representative, he was unable to execute an SBP election on the day of their appointment.  In view of this, at his request she obtained a full power of attorney and executed a new SBP election form.

The Air Force did not properly take care of her husband’s medical needs by denying his request for a medical appointment for medical treatment after the Department of Veterans Affairs (DVA) advised him of an abnormal blood test, recommending a follow-up appointment with his primary physician.  He contacted his primary physician at the Randolph AFB clinic and was advised that since he was on terminal leave and preparing to accept a civilian job in Spain, he should wait until he got to Spain for the follow-up.  Three weeks later, he arrived in Spain, was diagnosed with cancer, and immediately medically evacuated to Bethesda Naval Hospital, whereupon he was extended on active duty due to the severity of his illness.  He was ultimately medically retired and passed away shortly thereafter.

In support of her appeal, the applicant submits a statement from the Military Personnel Flight (MPF) Commander, a special power of attorney, general power of attorney, the member’s death certificate, and extracts from his military records.

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

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STATEMENT OF FACTS:

The applicant and the member were married on 15 June 1974.

On 14 March 2002, the member was briefed on the SBP and elected spouse only coverage based on a reduced amount ($2,100).  The applicant did not attend the briefing; however, on 27 March 2002, she concurred with his election.

The member had an approved retirement date of 1 July 2002; however, on 25 June 2002, his retirement was rescinded and he was placed on medical hold.  On that same date, he executed a special power of attorney and a general power of attorney, appointing the applicant as his Attorney-in-fact.

The applicant was admitted to the National Cancer Institute (NCI) on 19 July 2002 and underwent a tracheotomy on 4 September 2002.

On 5 September 2002, while receiving treatment at the NCI, the applicant and the member were scheduled for a briefing with representatives of his MPF.

Based on the diagnosis of cancer, the member was processed through the disability evaluation system, and placed on the Temporary Disability Retired List (TDRL) on 7 September 2002, with a disability rating of 100%.

The member executed another general power of attorney on 11 October 2002, appointing the applicant as his Attorney-in-fact.

The member died on 3 November 2002.

The applicant is currently receiving an SBP annuity of $1,171.  If the member’s election had been based on full retired pay, she would receive an SBP annuity of $1,842.

A retiring member is required to make an SBP election prior to retiring.  Public Law 99-145 (PL 99-145) requires a spouse’s concurrence in any election for less than the maximum spouse coverage.

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AIR FORCE EVALUATION:

AFPC/DPPTR, recommends the application be denied and states, in part, that the disability operations branch notifies a member’s immediate next-of-kin (NOK) in order to act on the member’s behalf, if the retiring member is determined to be incompetent for pay and records.  However, only the Secretary of the Air Force (SAF) can make an SBP election in behalf of a member determined to be incompetent.  While the NOK may provide input to the Secretary pertaining to SBP, based on that closely-related person’s understanding of the decision the retiring member would make if able to act on their own.  A power-of-attorney does not permit an individual to make an SBP election on a member’s behalf.  The member made no attempt to change his 14 March 2002 election during the five months prior to his disability retirement.  The member was properly briefed by the SBP counselor and had ample opportunity to elect the coverage he desired.  Although the member became very ill after being admitted to the NCI, he signed the AF Form 1180, Action on Physical Evaluation Board (PEB) Findings and Recommended Disposition on 5 September 2002.  There is no indication he was incompetent for pay and records at that time.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of the applicant’s appeal, the MPF Commander states, in part, that Air Force members counseled the applicant that her power-of-attorney allowed her to change her husband’s SBP election.  Based on this erroneous information, no further efforts were made to obtain the member’s signature.  The Air Force members that counseled her obtained the erroneous information from the Casualty Assistance Representative (CAR) that indicated a power-of-attorney was adequate.  Had they known otherwise, they would have taken action to obtain the member’s signature on a new election prior to his passing.  The applicant acted in good faith when updating her husband’s election and was not aware she was not able to do so.

The MPF Commander’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

AF/JAA, states, in part, that while a power-of-attorney cannot be used to make an SBP election or to provide a spouse’s concurrence, the Board may correct the member’s record to reflect that he elected spouse coverage based of full retired pay should it determine an error or injustice occurred.  This prohibition is based on Comptroller General decisions that an SBP election is personal to the service member.  There is no indication the member was mentally incompetent.  To the contrary, there is evidence he was lucid, as indicated by his signature on three documents on the date of his scheduled appointment (5 September 2002).  In addition, there is evidence that AFPC/DPPD advised that the member had to personally sign the required documents and that a power-of-attorney was ineffective unless the member had been declared either incompetent or comatose.  However, there is an indication the member intended to change his spousal coverage based on his scheduled appointment with the MPF Commander.  AF/JAA believes further statements should be obtained regarding the member’s intent or the circumstances leading up to the scheduled appointment on 5 September 2002.

A complete copy of the evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Prior to his retirement, her husband spoke with an MPF representative and discussed setting up an appointment to change his SBP election to spouse coverage based on the maximum amount since he knew he was not getting better.  Her husband was not mentally incompetent but he was under sedation at the time of their scheduled appointment due to an unexpected setback requiring an emergency tracheotomy.  She contacted the Casualty Affairs Representative (CAR) that morning to let him know that he was not going to be able to sign the form and was told that she could sign the form if she had a power-of-attorney.  She trusted the CAR because it is their job to provide the correct information and there was no way she had time to read regulations when her husband was lying in a hospital bed.  She does not understand how the error was not corrected prior to his passing away.  She was never even notified of the error until she began questioning why she was not getting the maximum SBP annuity.

Applicant’s complete response is at Exhibit H.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  In this respect, a majority of the Board notes that in preparation for his approved retirement date of 1 July 2002, the member elected spouse only coverage under the SBP based on a reduced amount.  However, after being diagnosed with cancer, his retirement date was rescinded and he was placed on medical hold.  He was subsequently placed on the TDRL with a 100% rating.  Contrary to the comments of AFPC/DPPTR, a majority of the Board does find evidence that the member took action to change his SBP election (i.e., he scheduled an appointment with MPF representatives to discuss his options and obtained two separate power-of-attorneys to allow his spouse to act in his behalf).  The MPF commander states that based on erroneous information obtained from the CAR, Air Force personnel counseled the applicant that a power-of-attorney was adequate to change her husband’s SBP election.  Based on this erroneous information, no further attempts were made to obtain the member’s signature on a new SBP election prior to his retirement.  In view of this, a majority of the Board believes the applicant has met her burden of establishing that she has been the victim of an error or injustice.  Therefore, a majority of the Board recommends the member’s records be corrected to the extent indicated below.

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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 14 March 2002, he elected Survivor Benefit Plan spouse coverage based on full retired pay.

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The following members of the Board considered Docket Number BC-2003-00654 in Executive Session on 30 September 2003, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

A majority of the members voted to correct the records, as recommended.  XXXXXXX recused himself from consideration of this case.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPTR, dated 3 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Apr 03.
    Exhibit E.  Letter, AFOSI/DPM, dated 8 May 03.
    Exhibit F.  Letter, AF/JAA, dated 27 Aug 03.
    Exhibit G.  Letter, AFBCMR, dated 29 Aug 03.
    Exhibit H.  Letter, Applicant, dated 9 Sep 03.

                                   
                                   Panel Chair

AFBCMR BC-2003-00654

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 14 March 2002, he elected Survivor Benefit Plan spouse coverage based on full retired pay.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency