RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:               DOCKET NUMBER: BC-2007-04088
		                    INDEX CODE:		 137.00
			COUNSEL:  NO
			HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her fathers records be corrected to terminate spouse only coverage under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her father has not had contact with his spouse for over 15 years and financially he can no longer afford SBP premiums.  Her father is currently a resident at a nursing home and is eligible for the institutional care program and Medicaid benefits.  However, his monthly responsibility exceeds his current income due to his monthly SBP payment.  The $95.47 payment is withheld from his gross pay when determining his responsibility of nursing home care and Medicaid expenses.  Unfortunately he suffers from dementia and is unable to speak for himself after suffering from a debilitating stroke over 15 years ago.  At the time of his stroke he was separated from his wife (Mexican national) for about six months.  The marriage was registered in Guadalajara on 20 June 1987.  They have had no communication with his wife since his illness despite several attempts to contact her.  She requests special consideration and/or review of his case as he lacks funds available to file for divorce.

In support of her request, the applicant provided a personal letter, a copy of an Irrevocable Qualified Income Trust, correspondence from the State of Florida Department of Children and Families, copies of his Retiree Account Statement, Social Security Benefits Statement and a Department of Veterans Affairs (DVA) benefits increase letter.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member was married and elected spouse-only coverage based on full retired pay prior to his 1 February 1978 retirement.  The parties divorced on 30 April 1984.  The applicant remarried on 20 June 1987.  There is no record that the former member submitted a DD Form 2656-2, Survivor Benefit Plan (SBP) Termination Request, required to terminate his SBP coverage during the disenrollment period authorized by PL 105-85.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRT recommends denial.  DPPRT states an SBP election may not be arbitrarily terminated as long as the beneficiary remains eligible.  Public Law 105-85, 18 November 1997, authorized members, who are retired more than two years as of 17 May 1998, a one-year window through which they could disenroll from the SBP (17 May 1998 - 16 May 1999).  Retirees had to complete AF Form 2656-2 and obtain the beneficiaries notarized consent.  Disenrollments were effective the month following the Defense Finance and Accounting Service - Cleveland Center’s (DFAS-CL) receipt of a properly completed termination form, postmarked no later than 16 May 1999.  There was no refund of premiums.  There is no record the applicant submitted a DD Form 2656-2 required to terminate his SBP coverage during the disenrollment period provided by PL 105-85.  It is unfortunate the member has had no contact with his wife, but there's no provision in PL 105-85 to waive the covered spouse’s concurrence or that permits disenrollment based on a missing spouse.  Furthermore, there is no basis in law to permit a participant to arbitrarily terminate spouse coverage, regardless of his wife's whereabouts, and it will be inequitable to other retirees in similar situations, to provide him an additional opportunity.  The applicant may wish to pursue civil action on her incompetent father's behalf to legally terminate his marriage.  A certified court order could then be submitted to the DFAS to suspend spouse coverage under the SBP.  There is no evidence of an Air Force error or injustice in this case; therefore, DPPRT recommends the request be denied.

The DPPRT evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating the primary basis for this request is to relieve her father of an expense he can no longer afford.  His monthly responsibility to qualify for the institutional care program and Medicaid benefits exceeds his current income due to his monthly SBP payment of $95.47.  He has been declared incompetent and incapacitated by a court of law, has been institutionalized for over 15 years and is unable to care for and represent himself.  She is his court-appointed trustee and authorized to take the administrative or judicial steps necessary to protect his eligibility for public assistance.  Unfortunately, she is restricted both financially and legally with regard to applying for a divorce on his behalf.  She requested legal assistance in seeking a divorce but was advised there was no guarantee it would be granted.  Attempts to reach his spouse via the Mexican and U.S. consultants have proven unsuccessful.  She can provide witnesses that his estranged wife has made no effort to contact her father in the past 15 years despite several attempts to get in contact with her.  If his wife was interesting in getting in contact with her father, there's no reason why she would not have contacted her.  Thus, trying to obtain any notarized statements regarding disenrollment from SBP is highly unlikely, if not impossible.  Her only expectation and hope is that her father, a 20 year armed forces veteran, and the system are not victimized by an absentee spouse who has abandoned him and clearly has demonstrated no interest in his welfare.  

The complete response is at Exhibit D.

_________________________________________________________________

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 an error or injustice.  After a thorough review of the evidence of record and applicant's submission, we are not persuaded that the relief requested is warranted.  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 office of primary responsibility.  We therefore adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden of proof of the existence of either an error or a injustice.  Absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of error or an 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-2007-04088 in Executive Session on 26 June 2008 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 12 December 2007, w/atchs.
  Exhibit B.  Letter, HQ AFPC/DPPTR, dated 4 February 2008.
  Exhibit C.  Letter, SAF/MRBC, dated 8 February 2008.
  Exhibit D.  Letter, Applicant, dated 21 February 2008, w/atchs.