RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01450
		INDEX CODE: 137.04
	xxxxxxxxxxx	COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  11 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

1.  His records be corrected to show he declined Survivor Benefit Plan (SBP) coverage and that the requirement for his wife to concur in the election be waived.

2.  The SBP premiums deducted from November 2006 to present be reimbursed.

3.  The legal fees he incurred be reimbursed. 
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APPLICANT CONTENDS THAT:

In February 2002, his wife was diagnosed with a brain disease that is causing atrophy in her brain.  His wife has lost most of her capabilities.  Although she is still mobile she is very unstable with greatly hindered communications skills.  His wife’s waiver election package was denied due to a lack of supporting documentation concerning his wife’s capabilities.  He believes his case has been mishandled from the beginning and unjustly decided on by those who demonstrate a lack of concern for his family.  He has done everything he was asked to do for the waiver and believes his family has been done wrong and seeks to make it right.  

In support of his appeal, applicant provides a personal statement, a copy of his durable power of attorney, petition for guardianship, personal will, medical documents concerning his wife’s condition and other associated documents regarding his request for waiver of spouse concurrence in SBP election.  

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

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STATEMENT OF FACTS:

The Military Personnel Database System reflects the applicant retired effective 1 November 2006 in the grade of master sergeant.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. 

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AIR FORCE EVALUATION:

AFPC/DPPTR recommends the application be denied.  DPPTR states that on 7 June 2006, the applicant submitted a request for waiver of his wife’s concurrence based on her medical condition and provided a power of attorney (POA).  AFPC/JA reviewed the applicant’s request and opined that his request be denied.  The applicant provided a Consent to the Appointment of a Guardianship order from the Illinois Circuit Court, appointing him guardian of his wife.  AFPC/JA again reviewed his waiver request and stated that there is a “direct conflict of interest in the member making an SBP decision on his wife’s behalf” and determined that the original decision to deny should remain.  The AFPC/DPPTR complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 June 2007 for review and comment within 30 days.  As of this date, this office has received no response.  

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We have reviewed the available evidence pertaining to the applicant’s request that his records be corrected to show he declined SBP coverage and that the requirement for his wife’s concurrence be waived.  His contentions in this regard are duly noted; however, we agree with the Air Force offices of primary responsibility that have previously reviewed his request, that allowing him to make this decision on his wife's behalf appears to create a conflict of interest and is contrary to the intent of the statutory requirement for her consent.  Therefore, it is our opinion that the provisions of Public Law 99-145 have been appropriately applied.

4.  We have noted the applicant’s request for reimbursement for the legal fees he has incurred.  The law under which this Board operates authorizes the payment of monies due as a result of a correction of the record to rectify an error and/or an injustice.  Therefore, favorable consideration of this portion of his request is not within the Boards purview.

5.	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 issues 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-2007-01450 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01450 was considered:

    Exhibit A.  DD Form 149, dated 1 May 05, w/atchs.
    Exhibit B.  Letter, AFPC/DPPRT, dated 8 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Jun 07.