RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02569
		INDEX CODE:  137.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her late husband's records be corrected to show that he elected spouse coverage under the Survivor Benefit Plan (SBP) program.

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APPLICANT CONTENDS THAT:

In Feb 93, her husband completed the DD Form 2618, Survivor Benefit Plan (SBP) Open Enrollment Election requesting premium payments to begin in Mar 93.  The form was mailed “certified” to the Defense Finance and Accounting Service-Denver, CO, (DFAS-DE) and certified received on 16 Feb 93; however, it appears the request was never processed.

In support of the application, she submits a copy of the SBP Open Enrollment Election form,  the certified receipts, the “Afterburner,” the premium schedule, and her spouse’s death certificate.

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

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STATEMENT OF FACTS:

The applicant and military service member were married on 26 Sep 59.  The service member elected child only RSFPP prior to his retirement on 1 Sep 67.  He did not elect SBP coverage for his spouse after it was enacted, nor did he make an election during the open enrollment authorized by PL 97-35.  His record contains a copy of a 28 Apr 93 letter from DFAS-DE advising him, among other things, that the 12 Feb 93 open enrollment election he submitted was “invalid” because block 10 did not indicate the base amount upon which he wished to establish coverage.  Open enrollment ended on 31 Mar 93.  He died on 13 Apr 08.

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AIR FORCE EVALUATION:

HQ AFPC/DPSIAR recommends denial.  DPSIAR states the member had six opportunities to provide some sort of survivor protection for his wife, but failed to do so.  Notwithstanding the decedent’s unsuccessful attempt to elect coverage during the last month of the year long open enrollment period authorized by PL 101-189, there is no evidence he contacted our office to apply for an administrative correction.  His open enrollment election form contained what appears to be the monthly SBP premium amount he thought would be collected from his retired pay if he elected coverage on a reduced level of retired pay.  The cost formula for the 92-93 open enrollment was based upon a member’s retirement date, with the maximum cost of 11 percent required for members who had retired prior to 21 Sep 72.  His gross retired pay effective 12 Dec 92 was $738 and a base amount of $673 would have had an open enrollment cost of $74.07.  Such a base amount would have provided the petitioner an SBP annuity of $370 if the member had lived for two full years following the date of a valid election.  If the decedent had made that election, the amount of the premiums that should have been deducted from his retired pay until his death would approximate $18,000.  Additionally, there is no evidence he submitted an open enrollment election on the petitioner’s behalf during the two subsequent open enrollment periods before his death.  

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.  DPSIAR opines to provide entitlement to this widow on the basis of the evidence presented would be unfair to those members who chose to participate when eligible and subsequently received reduced retired pay or to other widows whose sponsors chose not to participate.

The complete DSPIAR 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 19 Sep 08 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit C).

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  Although the former servicemember attempted to procure SBP coverage for his spouse in Feb 93, we note that his submission was deemed invalid.  We also note that DFAS-CL notified him a few months later of the invalid submission and provided him instructions on how to properly resubmit his application.  Regrettably, he never responded to DFAS-CL nor did he attempt to procure coverage during any of the other open enrollment periods offered before his demise.  Therefore, we agree with 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.  

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 this application in Executive Session on 20 November 2008, under the provisions of AFI 36-2603:

		XXXXXXXXXX, Chair
		XXXXXXXXXX, Member
		XXXXXXXXXX, Member

The following documentary evidence for AFBCMR Docket Number BC-2008-02569 was considered:

	Exhibit A.  DD Form 149, dated 23 Jun 08, w/atchs.
	Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 12 Aug 08.
	Exhibit C.  Letter, SAF/MRBR dated 19 Sep 08.

		XXXXXXXXXX
		Chair