RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00119

                              COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

She receive the benefits from her deceased husband’s Survivor Benefit Plan (SBP).

APPLICANT CONTENDS THAT:

Her deceased spouse did apply for the SBP; however, after his death she was unable to apply for SBP benefits in a timely manner because of her health and misinformation.  
 
While living in Florida, she became very depressed after losing her 14 year old son in an accident.  Her family moved from Florida to Puerto Rico to see if this would help her deal with the loss of a son.  Her husband was then killed in a plane crash on 26 Oct 96 which made her life even more difficult. She had extreme difficulty in getting help and no one told her about receiving benefits after losing her husband.

When she finally contacted a SBP representative she was told the statute of limitations had passed and to apply to the AFBCMR for re-consideration.

She has completed a marital status affidavit indicating she has not remarried.

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

STATEMENT OF FACTS:

On 31 Jul 76, the applicant retired and was furnished an honorable discharge, having served 20 years and three days of active service. 

An applicant requesting SBP annuitant benefits from the DFAS, who is subsequently denied because of failing to file a claim within the 6-year statute of limitations, as a next step, should seek relief from the Defense Office of Hearings and Appeals (DOHA).   Enclosures 5 and 6 of Department of Defense Instruction,(DODI) 1340.2, Procedures for Settling Personnel and General Claims and Processing Advance Decision Requests, provides the applicant a method to submit a claim through the Air Force Secretariat to the DOHA. 
 
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denying the applicant’s request. In this case more than 19 years have elapsed from the member’s death to her request. The Defense Enrollment Eligibility Reporting System (DEERS) records reflect the member and the applicant married on 16 Mar 85, but he failed to notify the finance center of his marriage; however, on the anniversary of their marriage (16 Mar 86) the applicant became the SBP spouse beneficiary by operation of law.  The member died on 26 Oct 1996. There is no evidence the applicant or any other person responsible or concerned for her well-being submitted an annuity claim within the six-year time limit.  We note that SBP premiums were not deducted from the member’s retired pay beginning 1 Apr 1986, the month following the anniversary of his marriage to the applicant, through the date of his death.       

If the Board’s decision is to grant relief the member’s retired pay records should be corrected to reflect the applicant submitted a valid claim for payment of the SBP on 27 Oct 96.  The unpaid contributions to the SBP will be collected from any annuity payment the applicant would be entitled to receive.

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 7 Sep 16 for review and comment within 30 days (Exhibit E).  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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  An applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction.  We note the applicant has not submitted her SBP claim to the Defense Office of Hearings and Appeals. This request must be prepared by the applicant and forwarded to the Air Force Secretariat after the Defense Finance and Accounting Service (DFAS) first denies the claim. Specific guidance on submitting a claim to the DOHA can be found in DODI 1340.20. In view of this, we find this application is not ripe for adjudication at this level as there exists an available level of appeal that has not first been depleted.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified that all available avenues of administrative relief have not been exhausted; and the application will only be reconsidered upon submission of documentary evidence indicating that said avenues of administrative relief have been exhausted.  

The following members of the Board considered AFBCMR Docket Number BC-2016-00119 in Executive Session on 7 Mar 17 and 25 Jul 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00119 was considered:

	Exhibit A.  DD Form 149, dated 16 Dec 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  AFPC/DPFFF Memorandum, dated 2 Aug 16
     Exhibit D.  SAF/MRBR, Memorandum, dated 17 Aug 16 w/atch
     Exhibit E.  SAF/MRBR, Memorandum, dated 7 Sep 17 w/atch.

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.