RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04376 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband’s record be corrected to show that he elected Survivor Benefit Plan (SBP) spouse coverage. ________________________________________________________________ APPLICANT CONTENDS THAT: Upon his retirement from the Air Force, the decedent was divorced from his previous spouse and elected child only SBP coverage. The decedent applied for SBP spouse coverage when they were married in 1981. It was not until she spoke to the Casualty Assistance Representative that she found out she was not covered nor were there any SBP beneficiaries. In support of her request, the applicant provides a copy of their marriage certificate, a copy of the death certificate, DD Form 2656-7, Verification for Survivor Annuity, Form W-4P, Withholding Certificates for Pension or Annuity Payments, and FMS Form 2231, Direct Deposit. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Information submitted by the applicant reflects the decedent retired from the Regular Air Force effective 1 August 1976 in the grade of Technical Sergeant (TSgt) and died on 14 September 2011. ______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial. DPSIAR states: There is no evidence of Air Force error or injustice in this case. The decedent elected child only SBP coverage based on a reduced level of retirement pay prior to his effective date of retirement. The decedent’s youngest child’s date of birth was 23 December 1965 and the child only coverage was suspended effective 1 July 1992. The applicant provided a copy of her and the decedent’s 14 February 1981 marriage certificate reflecting the decedent was not divorced from his previous spouse until 11 January 1977. There is no evidence the decedent submitted an open enrollment election to provide SBP coverage on the applicant’s behalf during the open enrollment opportunities authorized by Public Laws. Title 10, USC Section 1448(a)(3)(A), permits a member, who is not married at the time of retirement and who later marries, to provide SBP spouse coverage within the first year of marriage. However, absent irrefutable evidence the decedent was not legally married on 1 August 1976, the applicant’s claim is without merit. It is each member’s responsibility to ensure required actions are taken to provide family members those military benefits and privileges afforded to them. It would be inappropriate to provide SBP coverage, an opportunity not afforded to other surviving spouses similarly situated. The complete AFPC/DPSIAR evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 January 2012 for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. ________________________________________________________________ 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 warranting corrective action in regard to the decedent’s election of Survivor Benefit Plan, spouse coverage. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the 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. Therefore, in the absence of evidence to the contrary, we find no 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 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 this application BC-2011-04376 in Executive Session on 15 August 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149 dated 11 October 2011, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 28 December 2011. Exhibit C. Letter, SAF/MRBR, dated 6 January 2012.