RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00699 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: She be entitled to benefits under the Survivor Benefit Plan (SBP). ____________________________________________________________ _____ APPLICANT CONTENDS THAT: She was never made aware of the decedent’s decision to decline SBP coverage. She never received any information nor was she contacted by Air Force officials. In support of her request, the applicant provides a notarized personal statement; copies of the deceased member’s Death Certificate, marriage license, and other supporting documents. The applicant's complete submission, with attachments, is at Exhibit A. ____________________________________________________________ _____ STATEMENT OF FACTS: The applicant and the service member were married on 26 Jun 63. Other relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ____________________________________________________________ _____ AIR FORCE EVALUATION: AFPC/DPSIAR recommends granting relief. They note, the intent of the spouse notification requirement was to ensure spouses, upon the sponsor’s death, did not learn for the first time they weren’t covered by SBP. Public Law (PL) 92-425, which established the SBP effective 21 Sep 72, required that the spouse be informed when a married member declined or elected less than maximum spouse coverage. The U.S. Court of Claims has consistently ruled that widows of members retiring after SBP's implementation, who were not given notice of the sponsor's election, are entitled to full SBP coverage-Barber v. U.S., 676 F.2d 651 (CI. Ct. 1982); Dean v. U.S., 10 CI. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 1049 (Fed Cir. 1987)--commonly called Barber cases. There was no requirement for spouses to concur in the SBP elections until passage of PL 99-145 and applied only to members retiring on or after 1 Mar 86. In this case, as in all Barber cases, the facts are essentially the same: there is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that the notification was not received. The applicant and the decedent were married on 26 Jun 63. Defense Finance and Accounting Service (DFAS) records indicate the member declined SBP coverage prior to his 1 Oct 83 retirement. The member's election form could not be located by DFAS-Cleveland Center (DFAS-CL) and there is no evidence the required notice was or was not sent to the applicant. The member died on 31 Dec 10. In the event relief is granted, the unpaid contributions to the SBP that would have been deducted from the member's retired pay through the date of his death (approximately $143,100) must be collected before the applicant would be entitled to receive payments (approximately $1,935 per month). The complete AFPC/DPSIAR evaluation is attached at Exhibit C. ____________________________________________________________ _____ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 15 Apr 11 for review and comment within 30 days. As of this date, no response has been received by this office (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 warranting corrective action. The Air Force office of primary responsibility has adequately addressed the issues presented by the applicant and we are in agreement with it’s opinion and recommendation. In addition, we remind the applicant that approval is contingent upon recovery of SBP premiums the decedent would have paid had he made the election at that time. Accordingly, we recommend the decedent’s record 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 30 September 1983, he elected spouse only coverage based on the full retired pay. ____________________________________________________________ ____ The following members of the Board considered AFBCMR Docket Number BC-2011-00699 in Executive Session on 25 October 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Feb 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 4 Apr 11. Exhibit D. Letter, SAF/MRBR, dated 15 Apr 11. Panel Chair