RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01117
								INDEX CODE:  137.04
	XXXXXXXXXXXXXXXXXXXXXXX		COUNSEL:  NONE

								HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  9 October 2008

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APPLICANT REQUESTS THAT:

Corrective action be taken to reinstate the Survivor Benefit Plan (SBP) on her behalf.

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APPLICANT CONTENDS THAT:

She is the widow of a deceased, retired Air Force member.

She was her late husband’s caretaker and guardian for over 50 years after he became ill, and made major decisions for them and their family.

He paid SBP premiums for over 20 years, and it was not his intent that these premium deductions be stopped.  If they were stopped, it was done without their apparent knowledge of what exact changes were taking place.  There is no apparent documentation in their records of there being any clear advice on this matter of whether to continue payment of premiums or what they meant.

Had she known about this earlier, she would have corrected it.  She is currently under medical care for the effects of strokes and memory impairment, and this is her only source of income other than Social Security.

In support of her appeal, she has submitted a copy of her late husband’s death certificate, dated 15 March 2007.

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

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STATEMENT OF FACTS:

Applicant and her late husband were married on 28 July 1946 and he retired on 1 May 1956.  The applicant was appointed his legal guardian on 3 December 1956.  Acting on her late husband’s behalf, she elected spouse only SBP coverage based on full retired pay during the initial SBP open enrollment period, 21 September 1972 - 20 March 1974.

An SBP election may not be arbitrarily terminated as long as the beneficiary remains eligible.  Public Law (PL) 96-402, dated 9 October 1980, permits members who have been rated 100% disabled by the Department of Veterans Affairs (VA) for five continuous years immediately following retirement, or ten consecutive years if rated 100% after retirement, to withdraw from SBP.  These members are permitted to withdraw because their deaths will be presumed to be service connected; therefore, their surviving spouses will be entitled to monthly Dependency and Indemnity Compensation (DIC) payments from the VA.  DIC reduces an SBP annuity dollar-for-dollar.  If a member withdraws under this provision, there is no immediate refund of premiums; however, applicable spouse premiums may be refunded to the spouse following the member’s death.  To withdraw from SBP under this provision, the member, or legal guardian acting on his or her behalf, must submit a written request to the Defense Finance and Accounting Service (DFAS) with the beneficiary’s notarized consent.  Withdrawal is effective the month following DFAS receipt of the request.

In 1974, the VA awarded applicant’s husband 100% disability compensation due to a service connected nervous condition.  He continued to receive Air Force retired pay, and SBP premiums continued to be deducted from his retired pay, until March 1993.  On 18 January 1993, applicant, acting in her legal capacity as her husband’s guardian, submitted a written request to DFAS requesting suspension of SBP premiums being deducted from his retired pay, stating that she had given the matter much thought and felt this would be in their best interest.

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AIR FORCE EVALUATION:

AFPC/DPPRT recommends denial as there is no error or injustice in this case.  The applicant’s claim that it was not her husband’s intent that SBP premiums be stopped is without merit.  The applicant, who, by her own admission, made all major decisions on her husband’s behalf since 1956, initially elected SBP coverage on her behalf and later submitted a valid request to withdraw from the Plan.  It was her responsibility to understand the impact and effects of her actions and she had ample time and resources to obtain additional information.  It would be inequitable to other retirees similarly situated to grant her request.

If the Board’s decision is to grant relief, the applicant’s March 1993 request on behalf of the decedent to withdraw from SBP under PL 96-402 should be voided, and approval should be contingent upon recovery of all appropriate SBP costs.

The AFPC/DPPRT evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded on 11 June 2007.  She stated that she did not believe that she ever submitted a signed, written request to DFAS requesting suspension of SBP premiums being deducted from her husband’s retired pay, and requested that she be furnished a copy of such statement, which was mailed to her on 19 June 2007.  

Applicant’s complete response is at Exhibit E.

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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.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that the deceased member’s records should be altered so that his surviving spouse would be eligible to receive an SBP annuity.  Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The applicant, who, by her own admission, made all major decisions on her husband’s behalf since 1956, initially elected SBP coverage on her behalf and later submitted a valid request to withdraw from the Plan.  It was her responsibility to understand the impact and effects of her actions and she had ample time and resources to obtain additional information.  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 of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) 
involved.  Therefore, the request for a hearing is not favorably considered.

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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 Docket Number BC-2007-01117 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Panel Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Mar 07, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRT, dated 10 May 07.
    Exhibit D.  Letter, SAF/MRBR, dated 17 May 07.
    Exhibit E.  Letter, Applicant, dated 9 Jun 07.
    Exhibit F.  Letter, AFBCMR, dated 19 Jun 07.

                                   XXXXXXXXXX
                                   Panel Chair