RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01798
		INDEX CODE:  137.03
	
		COUNSEL:  NONE
		HEARING DESIRED:  YES
		
MANDATORY CASE COMPLETION DATE:  6 DECEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to allow him to terminate his spouse and child coverage under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not have a chance to elect not to participate in the SBP.

In support of his request, applicant provided a DD Form 2656, Data for Payment of Retired Personnel, dated 23 May 07.

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

_________________________________________________________________

STATEMENT OF FACTS:

The Air Force OPR states a review of the applicant’s record indicates the member was married and had an eligible child when he retired from the Air Force on 1 Apr 07.  He failed to attend the mandatory SBP briefing and did not complete an SBP election prior to the effective date of his retirement.  Absent a valid election, Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) established spouse and child coverage based on full retired pay to comply with the law.  The applicant contacted DPPRT when he learned that premiums were being deducted from his retired pay.  He and his wife were briefed by the Nellis SBP counselor and completed a DD Form 2656, declining SBP coverage.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT reviewed this application and recommends denial.  There is no evidence of error or injustice in this case.  Each person is required to attend a one-on-one SBP briefing given by an SBP counselor prior to their retirement.  Records reflect that the SBP counselor at Nellis AFB NV contacted the applicant on several occasions and scheduled appointments on 31 Oct 06, 16 Nov 06, 6 Jan 07, and 2 Feb 07, none of which he attended.  The member’s failure to keep scheduled appointments and follow base out-processing procedures resulted in his automatic enrollment in the SBP.  Approval of this request would provide the applicant an opportunity not afforded other retirees.  The applicant may exercise his option to terminate SBP coverage during the one-year period authorized by PL 105-85, beginning on 1 Apr 09.

Public Law (PL) 99-145 requires spouses of married members to concur in writing, prior to the member’s effective date of retirement, with SBP elections that provide less than full spouse coverage.  PL 105-85, 18 Nov 97, provides for a one-year period beginning on the 25th month following commencement of retired pay, during which SBP participants may choose to voluntarily discontinue their participation.  If the retiree fails to exercise the disenrollment option during the one-year eligibility period, the SBP election is considered permanent and is irrevocable as long as the beneficiary remains eligible.

When a member fails to complete a valid SBP selection prior to retirement, coverage is established for all eligible beneficiaries by operation of law.

The DPPRT evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 3 Jul 07, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  However, the applicant will have an opportunity to discontinue participation in the SBP at any time during the one-year period authorized by PL 105-85, beginning on the second anniversary of his receipt of retired pay (1 Apr 09).  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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 involved.  Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 Docket Number    BC-2007-01798 in Executive Session on 26 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01798 was considered:

    Exhibit A.  DD Form 149, dated 23 May 07, w/atch.
    Exhibit B.  Letter, AFPC/DPPRT, dated 21 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 3 Jul 07.