RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04033 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her deceased husband’s records be corrected to reflect that he elected “Spouse” coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: She never received notification of her option to decline participation in the SBP. In support of her request, the applicant provides copies of a notarized sworn statement, marriage certificate, and certificate of death. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: According to documentation provided by the applicant, she and her deceased husband were married on 28 May 55. According to documentation provided by the applicant, her deceased husband passed away on 22 Oct 11. AIR FORCE EVALUATION: AFPC/DPFFF recommends approval, indicating there is no record that the required notice for spouses to concur in the SBP election was sent to the applicant. Additionally, the applicant provided a sworn statement indicating the notification was not received. Public Law (PL) 92-425 established on 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 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, commonly known as Barber cases. There was no requirement for spouses to concur in the SBP elections until passage of PL 99-145 and applies only to members retiring on or after 1 Mar 86. In the event relief is granted, unpaid contributions (approximately $73,200) must be collected before the applicant would be entitled to receive SBP payments. A complete copy of the DPFFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the recommendation that SBP entitlement is contingent upon recovering the premiums her deceased husband would have paid, had he made the elections at the time of his retirement. She asserts that the Air Force’s failure to follow procedures required by law gives rise to a substantive right to money improperly withheld because participation in SBP was automatic, absent an affirmative election and proper notification and opportunity for counseling (Exhibit D). On 10 Jun 14, the applicant’s congressman inquired about the status of the applicant’s case. The correspondence included a signed statement from the applicant reiterating her disagreement of the OPR’s recommendation that SBP entitlement is contingent upon recovering the premiums her deceased husband would have paid (Exhibit E). THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a thorough review of the facts and circumstances of this case, we agree with the Air Force OPR’s recommendation that the member’s records should be corrected to reflect that he made a valid election for spouse coverage, based on full retired pay effective 31 Oct 76. While the applicant argues that the Air Force error entitles her to the SBP proceeds, DoD policy indicates SBP premiums must be collected by the Defense Finance and Accounting Service (DFAS) prior to issuing SBP payments. Therefore, the unpaid contributions will be collected before the applicant receives SBP payments. Accordingly, in the interest of justice, we recommend the applicant’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 DECEDENT be corrected to show that on 31 Oct 76, he elected spouse only coverage under the Survivor Benefit Plan, based on full retired pay naming the APPLICANT as the beneficiary. The following members of the Board considered AFBCMR Docket Number BC-2013-04033 in Executive Session on 27 Jun 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to considered AFBCMR Docket Number BC-2013-04033 was considered: Exhibit A. DD Form 149, dated 12 Sep 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 19 Nov 13. Exhibit C. Letter, SAF/MRBR, dated 6 Dec 13. Exhibit D. Letter, Applicant, dated 31 Dec 13, w/atchs. Exhibit E. Letter, Congressman, dated 10 Jun 14, w/atchs. Exhibit F. Letter, AFBCMR, dated 25 Jul 14. 3 4