RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05553 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His records be corrected to show that he elected Survivor Benefit Plan (SBP) spouse coverage. APPLICANT CONTENDS THAT: He was informed there was nothing else required at the time of his retirement On 22 Dec 77, he married his current wife. In Mar 1978, he filled out the form to make her his SBP beneficiary and mailed the form to the Department of Defense (DOD). He did not keep a copy of the form for his records. On 17 Dec 13, he called to check on his SBP coverage and was told that it had never changed. He is trying to get everything in order as he is in poor health. He is 84 years old and has a heart problem, a severe case of Chronic Obstructive Pulmonary Disease (COPD), and has had colon cancer surgery. The applicant provides no explanation as to why his failure to timely file should be waived in the interest of justice. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: On 1 Oct 69, the applicant retired. On 22 Dec 77, the parties were married. Public Law 92-425 established the SBP on 21 Sep 72 and authorized an enrollment period for retired members to elect SBP coverage. Public Laws 97-35, 101-189, 105-261 and 108-375 later authorized four additional open enrollment periods (1 Oct 81 – 30 Sep 82, 1 Apr 92 - 31 Mar 93, 1 Mar 99 -29 Feb 00 and 1 Oct 05 - 30 Sep 06, respectively. During all open enrollment periods, retirees were advised by direct mail of their eligibility to make an election. There were no provisions in these laws requiring the Services to notify a spouse if the member did not enroll. Federal Appeals Court Decision—Appeal 85-927, Helen Passaro v. U.S. held that the notice provision does not apply to a member already entitled to retired or retainer pay on 21 Sep 72. AIR FORCE EVALUATION: AFPC/DPFFF recommends denial. There is no evidence of Air Force error or injustice in this case and no basis in law to grant relief. The applicant’s failing health does not determine his wife’s eligibility for the SBP. The applicant had four opportunities to elect SBP on his wife’s behalf but failed to do so. SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage. Furthermore, the applicant offers no explanation for delaying (over 36 years since his marriage) in seeking correction. Coverage for his spouse can only be provided if Congress authorized another open enrollment. Providing the applicant an additional opportunity to elect SBP coverage would be inequitable to other retirees in similar situations and is not justified by the facts. The complete DPFFF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 14 Feb 14, a copy of the Air Force evaluation was provided to the applicant 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. 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 the rationale expressed 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 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 AFBCMR Docket Number BC-2013-05553 in Executive Session on 9 Oct 14, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 27 Nov 13. Exhibit B. Letter, AFPC/DPFFF, dated 29 Jan 14. Exhibit C. Letter, SAF/MRBR, dated 14 Feb 14.