RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03072 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased husband’s records be corrected to reflect that he elected “Spouse Only” coverage under the Survivor Benefit Plan (SBP) instead of “Child Only” coverage. ________________________________________________________________ APPLICANT CONTENDS THAT: At the time of her husband’s retirement, they were given inadequate information regarding the SBP and the “Child Only” option was never in the best interest of their family. They did not realize this until after her husband retired. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: According to the Certificate of Death provided by the applicant, the service member died on 7 Aug 92 due to cardiac arrest and probable myocardium rupture. The applicant was listed as his surviving spouse. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends denial, indicating the applicant’s assertion that they did not receive the proper information at the time of her deceased husband’s retirement is without merit. She offers no explanation of why her deceased husband failed to seek correction of his records after his 1978 retirement or before his death in 1992, nor did he elect coverage for her during the open enrollment from 1 Oct 81 to 30 Sep 82. The deceased former member elected “child only” coverage prior to his 1 Aug 78 retirement. Additionally, there is no evidence that the SBP counselor did not fully explain the options and the effects of the SBP to the service member and the applicant. Given that a presumption of regularity attaches to government affairs, in the absence of specific evidence to the contrary, it is presumed that officers of the government, like other public officials, discharge their duties correctly, lawfully, and in good faith. Furthermore, even if there was evidence of an error or injustice with respect to the deceased former member’s SBP election, the six-year statute of limitations requires a claim for payment of SBP annuities be submitted within six years of the member’s death. In accordance with Hart v. United States, 910 F.2e 815 (Federal Circuit Court 1990), a claim filed more than six years after the death of a service member is barred by the six year statute of limitations. Absent receipt of a valid claim, the Air Force has no legal authority to pay the survivor an SBP annuity, and payment “shall be forever barred.” A complete copy of the AFPC/DPSIAR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant indicates that she does not recall an open enrollment period and states her family was in transition during this period, moving between three different states. She mentions that she met the North Carolina Department of Veterans Administration (NCDVA) after her husband’s death and was not provided the statute of limitations information leading her to think she had no recourse. She made subsequent visits to the NCDVA over the years thinking she was going to the appropriate source. Lastly, she asserts that her husband’s decision making capability was limited due to his depression and mental struggles at the time of his retirement and subsequent years leading up to his death. He was only capable of the most basic of tasks. A complete copy of the applicant’s response is at Exhibit E. ________________________________________________________________ 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. We took notice of the applicant’s complete submission, including her rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion 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. 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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-2012-03072 in Executive Session on 7 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Jun 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 6 Sep 12. Exhibit D. Letter, SAF/MRBR, dated 24 Sep 12. Exhibit E. Letter, Applicant, dated 12 Dec 12. Panel Chair 3