RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01301
		INDEX CODE:  137.00
		COUNSEL:  

		HEARING DESIRED:  NO

MANDATORY COMPLETION DATE:  27 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

The widow of the former service-member be entitled to receive the Retired Serviceman’s Family Protection Plan (RSFPP) and Survivor Benefit Plan (SBP) annuities.

Examiner’s Note:  The applicant is the niece and trustee for the former service-member’s widow who is currently in a nursing home and suffers from dementia.

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APPLICANT CONTENDS THAT:

She became trustee of her aunt in Nov 06 and discovered that she is not receiving her late husband’s SBP annuities.  Her aunt is in a nursing home suffering from dementia and has accumulated a debt of approximately $43,000.00.  The annuities would help alleviate the debt.

In support of the application, the applicant submits the verification for survivor annuity form, her personal statement, a letter from her attorney, a certified copy of the former service member’s DD 214, a marriage license, a copy of the death certificate, and copies of clinical progress reports.

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

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STATEMENT OF FACTS:

According to the information provided by the Air Force office of primary responsibility, the former service-member and the applicant’s aunt were married on 22 May 43.  Defense Finance and Accounting Service (DFAS) records indicate that the member elected spouse and child RSFPP coverage prior to his 1 Sep 64 retirement.  Subsequently, he elected maximum spouse only coverage during the SBP open enrollment authorized by Public law 101-189 (1 Apr 92 to 31 Mar 93).  The member died on 7 May 99.  Had a valid claim been submitted before May 05, the widow would be receiving monthly payments of approximately $223.00 from RSFPP and $1,637.00 from SBP.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial of the applicant’s request.  DPPRT states because more than six years have elapsed between the member’s death and this application, the petitioner’s aunt may not be paid an RSFPP or SBP annuity since the Barring Act’s six-year statute of limitations would have run out in May 05.  DPPRT declares they are not unsympathetic to the widow’s medical condition; however, the failure to properly act on her behalf is not grounds to waive the Barring Act.

The complete DPPRT evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her undated and unsigned response, the applicant states that for her aunt not to apply for her SBP annuity speaks volumes.  She opines that possibly her aunt’s loss of her husband of 56 years was much too traumatic and thus began the onset of a severe depression that no one was aware of.

She and her aunt were in separate states and after her uncle’s death, contact was even more minimal.  She tried to contact her aunt by telephone, but her aunt’s daughter would intercept the calls and not allow her to speak with her aunt.  Her cousin never told her that her aunt was ill.  It was not until after her cousin’s death in Nov 06 that she learned that she was one of the  custodian’s of her uncle’s last will and testament.  

When she learned that her aunt was being housed in an assistant living facility, she made several attempts to locate her but was unsuccessful.  She has since located the facility where her aunt now lives and learned that she was in jeopardy of being evicted.  She is using her personal funds to help her aunt and has hired an attorney.  It appears documentation was filed to report her uncle’s death but the process for application of the SBP annuity was never completed.  

Her uncle was an educator and a retired college professor.  He also published a math book.  Because of her uncle’s encouragement and support she joined the Army and is now retired.  

The 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  It appears that mental medical conditions prevented the former servicemember’s spouse from applying for the RSFPP and SBP annuities due to her upon her husband’s death.  Therefore, we recommend that the records be corrected as 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 1 Jun 99 a valid claim for payment of RSFPP and SBP annuities was submitted by the surviving spouse, 

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The following members of the Board considered AFBCMR BC-2007-01301 in Executive Session on 7 June 2007, under the provisions of AFI 36‑2603:

XXXXXXXXXX, Panel Chair
XXXXXXXXXX, Member
XXXXXXXXXX, Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Mar 07, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPRT, dated 3 May 07.
    Exhibit D.  Letter, SAF/MRBR, dated 11 May 07.
    Exhibit E.  Letter, Applicant, undated.

                                   XXXXXXXXXX
                                   Panel Chair