RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04463
		
			COUNSEL:  NONE
(DECEASED SERVICE MEMBER)
			HEARING DESIRED:  NO
	(SPOUSE)

	(APPLICANT)


________________________________________________________________

APPLICANT REQUESTS THAT:

The service member’s records be corrected to entitle the service 
member’s spouse to a Survivor Benefit Plan (SBP) annuity.

________________________________________________________________

APPLICANT CONTENDS THAT:

His grandmother originally filed a claim in 1975, but was told 
the service member records were destroyed by fire in 1974.  Her 
claim for the service member’s pension has been denied for over 
38 years.  She was never told to submit a marriage certificate 
or any other documents.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 20 Oct 45, the service member commenced his enlistment in the 
Army.  On 1 Jan 63, the deceased former member retired from the 
Air Force.  

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force, which is attached at Exhibit B.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial noting there is no evidence of an 
error or injustice and no basis in law to warrant relief.  In 
order for the survivors of military retirees to continue receive 
a portion of the service member’s retired pay, the service 
members must have participated in one of the annuity plans 
offered by the Department of Defense.  

The Retired Serviceman’s Family Protection Plan (RSFPP) was in 
effect until 21 Sep 72.  Service members were briefed and 
required to make an election prior to completing 18 years of 
service.  Spouse notification was not required.  

The SBP was established on 21 Sep 72.  An enrollment packet and 
the Afterburner, USAF News for Retired Personnel, was sent to 
the correspondence address the service member had provided to 
the finance center and contained points of contact for retirees 
to use to obtain additional information.  There was no 
requirement for spouse notification if the service member did 
not elect to enroll in the program.  The court decision for 
Helen Passaro V. U.S. held that the notice provision did not 
apply to a service member already entitled to retired or 
retainer pay on 21 Sep 72.

On 18 Nov 97, a minimum SBP annuity was established for a 
specific group of survivors – annuity, certain military 
surviving spouses (ACMSS).  This is also referred to as 
“forgotten widows,” those unremarried surviving spouses of 
service members who retired prior to initial enrollment period 
for SBP, and who died prior to 21 Mar 74.  The annuity became 
effective 1 Dec 97, for those spouses who quailed and applied 
for the benefit.

The service member retired on 1 Jan 63.  His pre-retirement 
marital status could not be verified.  There is no evidence 
showing the service member enrolled in RSFPP prior to retiring.  
On 17 Feb 68, he married his spouse and there is no evidence he 
returned an election for SBP during the initial enrollment 
period.  The service member passed away on 14 Jan 75.

The service member had an opportunity to elect spouse coverage, 
but failed to do so.  Both the RSFPP and SBP are similar to 
commercial life insurance in order to participate you must make 
and election and pay the premiums in order to be covered.  In 
addition, since the service member passed away after 21 Mar 74, 
his spouse is not eligible for ACMSS.  Furthermore, neither the 
applicant, nor the widow has offered any explanation for the 
delay (over 38 years) in seeking relief of the claim.  To 
provide relief for this claim would be inequitable to those who 
were similarly situated.

A complete copy of the AFPC/DPFFF 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 21 Jan 14 for review and comment within 30 days 
(Exhibit C).  As of this date, no response has been received by 
this office.

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FINDINGS AND CONCLUSIONS OF THE BOARD:

After careful consideration of applicant’s request and the 
available evidence of record, we find the application untimely.  
Applicant did not file within three years after the alleged 
error or injustice was discovered as required by Title 10, 
United States Code, Section 1552 and Air Force Instruction    
36-2603.  Applicant has not shown a plausible reason for the 
delay in filing, and we are not persuaded that the record raises 
issues of error or injustice which require resolution on the 
merits.  Thus, we cannot conclude it would be in the interest of 
justice to excuse the applicant’s failure to file in a timely 
manner.

________________________________________________________________

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the 
interest of justice to waive the untimeliness.  It is the 
decision of the Board, therefore, to reject the application as 
untimely.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-04463 in Executive Session on 9 Oct 14 and 
15 Oct 14, under the provisions of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence was considered:

		Exhibit A.  DD Forms 149, dated 11 Sep and 23 Sep 13,
				  w/atchs.
    		Exhibit B.  Letter, AFPC/DPFFF, dated 17 Dec 13.
		Exhibit C.  Letter, SAF/MRBR, dated 22 Apr 11.