RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-03157
		
  (DEC)					COUNSEL:  NONE

APPLICANT:				HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

She be allowed to receive her deceased husband’s Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

She does not know why and was never notified that her late husband failed to elect SBP coverage.  Additionally, she never signed any statement declining the SBP coverage.  

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

STATEMENT OF FACTS:

The deceased former military member initially entered the Regular Air Force on 18 May 51.  

On 18 Oct 51, his commander interviewed the deceased former military member on marriage.  

On 22 Sep 71, according to his DD Form 398, Statement of Personal History, dated 6 Apr 73, the deceased former military member divorced.  

On 31 Dec 75, according to the State of Louisiana, Parish of Rapides, certificate of marriage, the former military member and the applicant were married.

On 1 Nov 79, the former military member retired and was credited with 28 years, 5 months, and 13 days of active service.

On 26 Mar 15, according to the State of Louisiana certification of death, the former military member died.

Effective 21 Sep 72, Public Law (PL) 92-425 established the SBP.  The law required spouse notification when a married member declined or elected less than maximum spouse coverage.  The U.S. Court of Claims has consistently 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 - Barber v. U.S., 676 F.2d 651 (Cl. Ct. 1982); Dean v. U.S., 10 Cl. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 1049 (Fed Cir. 1987) - commonly called 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.

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFFF recommends granting the applicant’s request, indicating there is evidence of an error or injustice.  Defense Finance and Accounting Service (DFAS) records indicate the member declined SBP coverage prior to his 1 Nov 79 retirement.  The member’s election form (DD Form 1883, Survivor Benefit Plan Election Certificate, dated 28 Nov 79) was located by DFAS; however, there is no evidence the required notice was sent to the applicant (see DPFFF attachment).  The member died on 26 Mar 15.  In the event relief is granted, the unpaid contributions to the SBP that would have been deducted from the decedent’s retired pay through the date of his death (approximately $235,000) must be collected before the applicant would be entitled to receive SBP payments (approximately $1,969 per month).

A complete copy of the AFPC/DPFFF evaluation, with attachment, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She refutes the validity of AFPC/DPFF’s attachment (DD Form 1883) as it was not completely filled out as it failed to indicate the former military member was married or had children.  Furthermore, the applicant understands that the premiums would have to be collected prior to disbursement of funds; however, the amount would take a lifetime to repay.  She requests an alternative annuity payment where she would be allowed to draw at least one-half of the benefit and one-half to be paid toward repayment of the back premiums because of negligence on the part of the decedent and the witness that handled the DD Form 1883.  

A complete copy of the applicant’s rebuttal 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case and 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 been the victim of an error or injustice.  We also took notice of the applicant’s request for an alternate payment option; however, we believe this is outside of the Board’s purview.  Therefore, we recommend the applicant's records be corrected as indicated below.	

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the FORMER MILITARY MEMBER be corrected to show that on 31 October 1979, he elected spouse only Survivor Benefit Plan (SBP) coverage based on full retired pay.  Approval is contingent upon recovery of any applicable SBP premiums.

The following members of the Board considered AFBCMR Docket Number BC-2015-03157 in Executive Session on 25 Aug 16 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 AFBCMR Docket Number BC-2015-03157 was considered:

	Exhibit A.  DD Form 149, dated 13 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 25 Nov 15, w/atch.
	Exhibit D.  Letter, AFBCMR, dated 10 Dec 15.
	Exhibit E.  Applicant’s Rebuttal, dated 7 Jan 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.