RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01439
		INDEX CODE:  137.04
		
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  7 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show he elected coverage for her under the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

Her husband filled out the necessary forms to change the SBP beneficiary in 1990, when they were married.  Her husband’s ex-spouse died in May 2000.  Money was continually taken from his pay until his death in 2006.

In support of her request, applicant provided a copy of her husband’s death certificate and an SBP Fact Sheet.

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

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STATEMENT OF FACTS:

Microfiche records produced by the Air Force Accounting and Finance Center (AFAFC) from Dec 78 (DPPRT’s oldest retired pay records) reflect that prior to the member’s 1 Aug 69 retirement; he was married and elected spouse and child Retired Serviceman’s Family Protection Plan (RSFPP) coverage (with option 4).  The record reflects the member did not elect SBP coverage during the initial enrollment.  The youngest child lost eligibility to the RSFPP Jul 81.  The parties divorced on 5 Jul 83, but RSFPP premiums of approximately $63 were erroneously deducted from the member’s retired pay even though he had no eligible spouse beneficiary.  Defense Enrollment Eligibility Reporting System (DEERS) records show the decedent married the applicant on 6 Mar 90.  There is no evidence he elected SBP coverage during either of the two open enrollment periods which occurred after his marriage to the petitioner.  The member had several opportunities to elect SBP coverage before his 11 Oct 06 death.  Had the member elected SBP coverage based on full retired pay, the monthly cost would have been approximately $157 at the time of his death and the annuity would have been no less than $1,335.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial, stating there is no evidence of error or injustice on the part of the Air Force.  

Retired Serviceman’s Family Protection Plan (RSFPP) was in effect when the member retired.  Members were briefed and required to make their RSFPP elections before completing 18 years of service.  Coverage could not be transferred to another person upon the death or divorce of the original beneficiary.  Option 4 allowed the member to terminate RSFPP premium payments in the event the beneficiary lost eligibility.  

DPPRT further stated they cannot determine the reason for the decedent’s failure to advise the finance center of his 1983 divorce.  The decedent may have mistakenly believed that the applicant was eligible to receive an RSFPP annuity upon his death since the monthly premiums continued following their marriage.  Unfortunately, his belief had no basis in fact or law and the Air Force has no authority to pay an RSFPP annuity to his widow.  Furthermore, the Air Force may not pay an SBP annuity to the applicant because the member retired before the implementation of the SBP and he did not choose to provide SBP coverage on her behalf.  The SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage.

However, if the Board’s decision is to grant relief, the decedent’s record should be corrected to show he elected SBP spouse only coverage based on full retired pay effective 21 Sep 72 under the provisions of PL 92-425; concurrently terminated his RSFPP coverage; his former spouse lost eligibility on 6 Jul 83; and the applicant became the eligible spouse beneficiary effective 5 Mar 91.  Approval should be contingent upon the recovery of the additional premiums that would have been deducted if the member had made these changes.

The DPPRT evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She and her husband had the understanding that the beneficiary had been changed to reflect her name as the sole beneficiary when her husband’s ex-wife passed away in 1998 [sic].  Her husband filled out what he believed were the proper forms to change the beneficiary.  Premiums on that policy were never interrupted and her name was on the forms.

If, as you claim, there was no beneficiary listed, then why were premiums taken out of her husband’s account every month from 1998 through 2007.  According to your own website, upon death of beneficiary – premiums stop.  Since they did not, she and her husband were still under the assumption that their paperwork was in order and that she was the beneficiary.

Furthermore, if it is found that she is not entitled to full benefits under this policy, she should be reimbursed all payments erroneously taken out of her husband’s account from 1998 through 2007 plus interest.

Applicant's complete response is at Exhibit D.

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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.  We took notice of the applicant’s complete submission in judging the merits of the case.  Notwithstanding the opinion provided by HQ AFPC/DPPRT, after thoroughly reviewing the circumstances of this case, it is our opinion the applicant should receive the SBP annuity.  It is possible that since the premiums were still being deducted from the member’s retired pay after the death of his first spouse and continued following his marriage to the applicant, that he believed his current spouse was the beneficiary of the SBP annuity.  We are persuaded by the evidence presented that it was the member’s intent to provide his spouse with the SBP annuity.  Therefore, we recommend the 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:

	a.  He elected Survivor Benefit Plan spouse only coverage, based on full retired pay effective 21 September 1972, under the provisions of Public Law 92-425, and concurrently terminated his Retired Serviceman’s Family Protection Plan (RSFPP) coverage. 

	b.  Spouse coverage was suspended 6 July 1983, and spouse coverage was reinstated on the first anniversary of his marriage to xxxxxxxxxxxxxx, on 6 March 1991.  Appropriate adjustments for full credit for RSFPP premiums and full recovery of retroactive SBP premiums apply.

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The following members of the Board considered AFBCMR Docket Number BC-2007-01439 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to Docket Number       BC-2007-01439 was considered:

     Exhibit A.  DD Form 149, dated 14 Apr 07, w/atchs.
     Exhibit B.  Letter, AFPC/DPPRT, dated 22 May 07.
     Exhibit C.  Letter, SAF/MRBR, dated 1 Jun 07.
     Exhibit D.  Letter, Applicant, dated 29 Jun 07.