RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02878 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: His late father’s record be corrected so his mother can receive a Survivor Benefit Plan (SBP) annuity based on his father’s participation in the program. _________________________________________________________________ APPLICANT CONTENDS THAT: His mother was diagnosed with Alzheimer’s disease three years prior to his father’s death and she was not aware of the SBP at the time of his death. In support of his appeal, the applicant provides a personal statement; and, copies of his father’s Death Certificate; DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; his mother’s medical documents; his parent’s marriage certificate; a Defense Finance and Accounting Service response to a congressional inquiry; and Probate Court Power of Attorney and Living Trust documents. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to the member’s DD Form 214, provided by the applicant, the decedent was released from the Regular Air Force on 31 July 1965 and retired in the grade of major (O-4) effective 1 August 1965. He served 20 years and 16 days on active duty. The remaining relevant facts are contained in the letter prepared by the Air Force office of primary responsibility (OPR) at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial. DPSIAR indicates the Defense Enrollment Eligibility Reporting System (DEERS) records reflect the decedent and his spouse were married on 26 June 1948 and that he did not enroll in the Retired Serviceman’s Family Protection Plan (RSFPP) prior to his 1 August 1965 retirement. Air Force Accounting and Finance Center (AFAFC) records reflect the member declined SBP coverage during the SBP’s initial enrollment period (21 September 1972 – 20 March 1974). Subsequently, he elected maximum spouse only coverage during the SBP open enrollment authorized by Public Law 97-35 (1 October 1981 – 30 September 1982). The member died on 19 February 2000. There is no evidence his widow or any other person responsible or concerned for her well-being submitted an annuity claim within the six-year time limit. Had a valid claim been submitted before February 2006, the decedent’s widow would be receiving monthly SBP payments of approximately $2,199. DPSIAR states the Barring Act limits payments of SBP annuities to those claims received within six years of the participant’s death. While they are sympathetic to the widow’s medical condition, her condition and her son’s failure to properly act on her behalf, are not grounds to waive the Barring Act. The claim for late payment, previously reviewed by the Deputy General Counsel at the DFAS – Denver Center, reported in their 10 August 2002 opinion that there is no authority to waive the six-year statute of limitation. DPSIAR indicates there is no evidence of an Air Force error in this case; therefore, they recommend the request be denied. However, if the Board’s decision is to grant relief and set aside the Barring Act, the decedent’s retired pay records should be corrected to reflect the applicant submitted a valid claim for payment of the SBP on 20 February 2000. The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He has already provided proof from his mother’s physician that his mother was and is not mentally competent or aware of the SBP benefits. Veteran Affairs has already found his mother to be incompetent to make her own decisions or take care of herself. He is not blaming anyone for not requesting SBP benefits, he just asks the Board to consider and vote favorably on his request in behalf of his mother. The applicant’s complete rebuttal, with attachment, 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After thoroughly reviewing the evidence in this case, we are persuaded it was the applicant’s intent to provide his current spouse with an SBP annuity. In this respect, we note the decedent elected maximum spouse only coverage during the SBP open season enrollment authorized by Public Law 97-35. However, due to his spouse’s illness of Alzheimer’s disease, she was unaware of the SBP at the time of his death and therefore did not make a claim for benefits. We believe that since SBP premiums were deducted from the member’s retired pay; and, in an attempt to preclude a possible injustice, the requested relief should be granted. Accordingly, we recommend the member’s records be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 20 February 2000, the designated Survivor Benefits Program (SBP) beneficiary submitted a valid claim for SBP payments. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02878 in Executive Session on 7 June 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence for AFBCMR Docket Number BC-2010- 02878 was considered: Exhibit A. DD Form 149, dated 4 Aug 10, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 29 Sep 10. Exhibit C. Letter, SAF/MRBR, dated 12 Nov 10. Exhibit D. Letter, Applicant, dated 8 Dec 10. Panel Chair