RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02536 INDEX CODE: 137.00 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP) and the requirement to pay past premiums be waived. _________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his retirement in 1968 and prior to the enactment of the SBP he was not married and had no children. He married in October 2005 and did not notify the Defense Finance Accounting Service (DFAS) within the one year timeframe to enroll his new spouse in SBP. He was not notified or aware of his options in the SBP until he read the 2009 issue of the Afterburner. He submitted a request in 2009 to enroll his spouse in SBP. His request was denied. He further contends that retired service members are ordinarily notified of the options in SBP by the Afterburner, however; at the time of his marriage the Afterburner was not being published. His counsel further notes that the Board has allowed service members who failed to elect SBP within the first year of their marriage to correct their records to show that they elected SBP as evidenced in BC-2004-02286. In support of his request, the applicant provides a copy of supplemental statement, his marriage certificate, extracts from the Afterburner, letters from DFAS, and documents extracted from his military and personal records. Applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant retired on 1 Aug 68 and did not have an eligible spouse beneficiary during the SBP’s initial open enrollment period (21 Sep 72 – 20 Sep 73). He married on 11 Oct 05. He did not submit a request to enroll his spouse in SBP within the first year of their marriage. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate offices of the Air Force, which are attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial. AFPC/DPSIAR states the applicant’s contentions are without merit. The autumn 2005 and August 2006 Afterburners were mailed to the correspondence address he provided to the finance center, the address where he currently resides. The Afterburner provided contact telephone numbers to call for additional information. There is no evidence he submitted a request for SBP coverage for his wife until three years after the first anniversary of his marriage. Had he submitted a valid election in a timely manner the monthly premiums would have been deducted from his pay. SBP is similar to commercial life insurance in that an individual must elect to participate during the opportunities provided by law and pay the associated premiums in order to have coverage. To approve this request would provide the applicant an additional opportunity to elect SBP not afforded other retires similarly situated and is not justified. The complete AFPC/DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant’s counsel states they disagree with the Air Force office of primary responsibility (OPR) recommendation to deny the applicant’s request. The OPR states he was mailed the August 2005 and 2006 editions of the Afterburner, and he should have been placed on notice that he had one year to enroll his spouse in SBP. The applicant did not get married until 11 Oct 05 and had no reason to note any information regarding SBP. Furthermore, multiple events in the latter half of 2005 make it unreasonable to assume he read or even received the Afterburner. In regard to the August 2006 Afterburner, by then he was 89 years old and not in the best of health and was still experiencing difficulties with the events of 2005. It is likely that he did not receive the newsletter because when he received the 2009 issued, he applied for SBP spouse coverage. Had he received the only edition mailed in 2006, he would have applied for SBP at that time. The OPR argues that the knowledge of the SBP rules can be inferred from the fact that the Afterburner is mailed to retirees. During the four year period the applicant only received one copy of the newsletter. When multiple editions of the newsletter are mailed to a retiree it is reasonable to assume the retiree received one or more of the newsletters; however, when only one edition is mailed in several years, it is not reasonable to assume the retiree received it. As soon as the applicant was aware of he could enroll his spouse in the SBP he did so. The Counsel’s complete response, with attachments, 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. As we understand the crux of counsel’s argument in behalf of the applicant, the applicant’s record should be corrected to reflect a timely election of coverage for his spouse under SBP because the Air Force failed to provide the applicant proper and timely notification of his entitlements under the SBP program. In particular, applicant’s counsel sets forth various arguments in rebuttal to the Air Force Office of primary responsibility’s assertion the applicant was put on notice of required action through the retiree publication the Afterburner. Additionally, counsel references an AFBCMR case involving SBP where that applicant was provided relief as a further basis for us to grant relief in this instance. Regarding notification through the Afterburner, counsel initially argued that the Afterburner was not being published at the time of the applicant’s marriage, which was refuted by the Air Force OPR since the Afterburner was published in August 2005 and August 2006. When this fact was pointed out, counsel responds that because the applicant married in October 2005 and the Afterburner was published in August 2005, there was no reason for the applicant to take note of information regarding SBP. Counsel applies the same logic to any issues of the newsletter the applicant may have received prior to 2005, arguing that the applicant had always been single and had no reason to note SBP information. Regarding the August 2006 issue, counsel recounts a litany of mishaps and hardships the applicant experienced during this period which counsel believes casts doubt on whether the applicant received this issue. However, she does not mention whether the applicant experienced any other problems with delivered mail during this period. Counsel asserts the applicant’s affirmative action in 2009 after Afterburner publication resumed is evidence the applicant would have taken proper and timely action to obtain SBP coverage had he received the August 2006 issue of Afterburner. We are not so persuaded. Even conceding there may have been circumstances that call into question whether the applicant received the August 2006 issue, we do not find that the merits of the case hinge solely on this issue. We believe members have a responsibility to retain information that is provided about important topics such as retirement benefits, keep abreast of changes that impact them and/or inquire about how significant life changes might impact them. The Afterburner is a worthwhile, commendable outreach and education tool; it does not create a legal entitlement to personal notice or reminders. As applied to this case it appears reasonable to this Board the applicant would have given some contemplation to what benefits his future spouse would receive after marriage to him. In any event we feel the applicant failed to exercise reasonable diligence in determining what benefits his wife would be entitled as a result of their marriage. We also find the circumstance in this case sufficiently different from that in the referenced BCMR case and find no basis to recommend granting relief on that basis. In the referenced case the Board noted that since that applicant had previously elected coverage under SBP, it was reasonable to assume he would have taken steps to provide SBP for his spouse absent the circumstances that precluded him from doing so. The significant health problems in that case are also more significant than the circumstances cited by the applicant. At any rate, the fact that the Board elected to resolve doubt in favor of that applicant does not prevent it from determining there is not a sufficient basis here to accord the applicant the benefit of doubt. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief 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 a 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 AFBCMR Docket Number BC-2010-02536 in Executive Session on 5 Oct 10, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Jul 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 2 Aug 10. Exhibit C. Letters, SAF/MRBR, dated 13 Aug 10. Exhibit D. Letter, Counsel, dated 13 Sep 10, w/atchs.