RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01398
		INDEX CODE: 137.00

	        (Deceased)	COUNSEL:  None

		HEARING DESIRED:  NO

_________________________________________________________________
APPLICANT REQUESTS THAT:

Her late-husband’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

An error was made at XXXXX AFB in 1979 because she knows her husband resigned (sic) for the Survivor Benefits.

Applicant's complete submission, with an attachment, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The servicemember elected spouse and child coverage under the Retired Serviceman’s Family Protection Plan (RSFPP) prior to his 1 September 1970 retirement.  There is no information in the servicemember’s records to indicate why and when this marriage ended.  There is no information in his records regarding his marital status as of 21 September 1973.  He declined SBP coverage during the initial enrollment period.

The applicant and the servicemember were married on 1 September 1979.  There is no evidence in the servicemember’s records that indicates he elected SBP coverage on the applicant’s behalf within the first year of their marriage or during the open enrollments of 1981-1982 or 1992-1993.  The servicemember died on 29 December 1995.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPTR indicates that the Survivor Benefit Plan (SBP) was established by Public Law (PL) 92-425 on 21 September 1972, authorizing a one-year open enrollment period for servicemembers to elect coverage.  Servicemembers, who were unmarried on 20 September 1973, were permitted to elect coverage within one year after acquiring a spouse or child.  Public Laws 97-35 and 101-89 authorized open enrollments periods 1 October 1981 - 30 September 1982, 1 April 1992 - 31 March 1993 to elect or increase SBP coverage.  The open enrollment packets, as well as the Afterburner, USAF News for Retired Personnel, published during these timeframes were forwarded to the servicemember's address maintained by the finance center.  The Afterburner contained points of contacts to obtain additional information regarding SBP.  These open enrollments periods required retired servicemembers to live for two full years from the effective date of the election before their survivors gained eligibility to receive the annuity.

If the applicant was married to another person on 21 September 1973, he was not eligible to elect coverage for the applicant within the first year of their marriage.  The servicemember’s first opportunity to elect coverage would have been the 1981-1982 open enrolment.  The information regarding the 1992-1993 open enrollment was published in the 1992 Afterburner, which was mailed to servicemember at the address where the applicant continues to reside.  If the servicemember had elected SBP coverage he would have had to pay a late election charge of 4.5 percent, plus the standard 6.5 percent cost for spouse coverage.  Furthermore, the servicemember’s failure to notify the finance center of his change in marital status does not impact this request.  While the applicant is not eligible to receive RSFPP payments, she should have received the premiums that were deducted from his retired pay (subject to the six-year statute of limitations).  It is unfortunate the servicemember did not elect SBP coverage for the applicant when he was eligible to do so.  However, the well-meaning intentions of retired servicemembers are not sufficient grounds to constitute a valid SBP election.  It would be unfair to the members who chose to participate when eligible, and to the other widows whose sponsors whose chose not to participate, to provide an entitlement to the applicant.

DPPTR recommended that the request be denied.  However, if the Board recommends granting the request, the servicemember’s record should be corrected to show the servicemember elected SBP spouse only coverage based on full retired pay effective 21 September 1972.

A complete copy of the evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 23 May 2003, for review and response.  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 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 the recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The servicemember failed to notify the Finance Center of the change in his marital status; and did not elect spouse coverage during the initial enrollment period for SBP; nor did he elect coverage during authorized open enrollments periods.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-01398 in Executive Session on 30 September 2003, under the provisions of AFI 36‑2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 17 Apr 03, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPTR, dated 13 May 03.
	Exhibit C.	Letter, SAF/MRBR, dated 23 May 03.

					Panel Chair