RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-03899
		
							COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

She be entitled to her deceased spouse’s (former member) Survivor Benefit plan (SBP) annuity.

APPLICANT CONTENDS THAT:

On 28 May 08, she completed and submitted DD Form 2656-7, Verification for Survivor Annuity, to the Casualty Assistance Representative (CAR); however, the CAR failed to submit her claim to DFAS-CL, resulting in the annuity never being established.  

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

STATEMENT OF FACTS:

The decedent initially entered the Regular Air Force on 27 Mar 07. 

On 27 May 08, according to DD Form 1300, Report of Casualty, the former military member, died as a result of accidental drowning. 

On 28 May 08, the applicant completed DD Form 2656-7, Verification for Survivor Annuity.  

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.  The surviving spouse of a member who dies on active duty, and whose death is considered to be in the Line-of-Duty (LOD), may receive an SBP annuity.  Payments under the active duty death provision of SBP are based on the retired pay the member would have been entitled to receive if the member had been retired on the date of death.  Dependency and Indemnity Compensation (DIC) is a benefit paid by the Department of Veterans’ Affairs (DVA) to spouses of members who die of a service-connected cause.  If a surviving spouse is entitled to both SBP and DIC, the SBP annuity is offset by the amount of DIC received.  Additionally, following enactment of Public Law (PL) 110-181 (18 Apr 08), widows/widowers, whose SBP was offset by DIC, became entitled to a Special Survivor Indemnity Allowance (SSIA) of $50 per month. The SSIA monthly payments increase every year and payments terminate on 1 Oct 17.  The statute of limitations requires a claimant to apply for payment of SBP annuities within six years of the member’s death.  The applicant offers no explanation for the seven year delay in seeking correction.  

The decedent was assigned to the 1st Special Operations Aircraft Maintenance Squadron, Hurlburt Field, FL, at the time of his 27 May 08 death.  The applicant and the decedent were married at the time of his death, and on 28 May 08, the CAR assisted the applicant in completing a DD Form 2656-7, to claim payment to an SBP annuity; however, the CAR failed to submit the applicant’s claim to DFAS-CL.  If the DD Form 2656-7 had been forwarded for payment of the SBP, her annuity would have been approximately $554, at the time of the member’s death, and would have been offset, dollar-for dollar, by her entitlement to DIC payments of $1,154 (effective 1 Jun 08).  She would have also been eligible to receive SSIA payments of $50 a month beginning 1 Oct 2008.  In the interest of justice, they recommend the decedent’s record be corrected to show the applicant filed a claim for payment of her SBP annuity prior to 27 May 14.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 8 Apr 16, for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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.  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.  Additionally, with respect to the applicant not exhausting all administrative remedies, Title 32 USC § 3702 allows the six year statute of limitations to be waived in cases like this if the claim does not exceed $25,000.  The member is requesting SBP which would have been offset by DIC, equaling a zero sum claim for SBP.  However, the applicant would have also been entitled to SSIA which total amount to date would be under the $25,000 claim limit.  Nevertheless, this alternate administrative remedy does not give the applicant the necessary relief for future benefits she will be due and would still require her application to this agency in order to obtain full relief. Therefore, it is in the interest of administrative efficiency that this request should be granted relief from this agency at this time.  Therefore, we recommend the deceased military member's records be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the DECEDENT be corrected to show that on 28 May 2008, the APPLICANT submitted a valid claim for payment of the Survivor Benefit Plan annuity under the provisions of Title 10, United States Code, Chapter 73, and the aforesaid application was correct and complete, including all necessary documentation for dependency.

The following members of the Board considered AFBCMR Docket Number BC-2015-03899 in Executive Session on 4 Nov 16, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03899 was considered:

	Exhibit A.  DD Form 149, dated 1 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 10 Feb 16.
	Exhibit D.  Letter, SAF/MRBR, dated 8 Apr 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.