RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01627

XXXXXXXXXXXXXX	COUNSEL:  	XXXXXXXXXXXXX

XXXXXXXXXXXXXX  	HEARING: NO

APPLICANT REQUESTS THAT:

She and her son receive Survivor Benefit Plan (SBP) annuity.  

His Army Special Order 01-102, dated 22 Jan 93, be amended to reflect his correct social security number.

His DD Form 214, Certificate of Release or Discharge from Active Duty, be amended to reflect he served in Laos.

His Federal Employee Retirement System (FERS) survivor’s annuity calculation and errors in the Office of Personnel Management (OPM) retirement system be corrected and she be the beneficiary for his Thrift Savings Plan (TSP).  

APPLICANT CONTENDS THAT:

She and her son have a legal, ethical and moral right to her husband’s retirement benefits.  She did not know she would be signing away her rights to SBP.  They were in the adoption process before his death. The Department of Human Services (DHS) did not send the paperwork for adoption until one month after her husband’s death.  

Her husband told her she was the beneficiary of his retirement and TSP.  She trusted her husband who told her to sign the documents.  Her attorney was advised she received the benefits from OPM but she has not received it.  Her husband died on 19 Nov 14 and she has not received his retirement package.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The former service member retired from the Air National Guard (ANG) on 25 Jan 12.   

Per 10 U.S.C. § 1448(a), a written consent from the spouse is required should a member elect not to participate in the SBP.  

DD Form 2656, Data for Payment of Retired Personnel, shows the former service member on 27 Nov 11 elected not to participate in the SBP.   On 28 Nov 11, the applicant signed she concurred with the SBP election made by her spouse, indicated she received information explaining the options available and that she understood that retired pay would stop on the day the retiree dies.  The applicant’s signature was notarized as required for the declination of SBP.

Applicant provides a certificate of death issued by the State of Michigan which shows his date of death as 19 Nov 14.  

AF Form 58, Casualty Assistance Summary, states no election for SBP or RCSBP was made; DFAS and OPM were notified on 20 Nov 14 and on 9 Jan 14 all benefits were paid and the case closed.  

Army Special Order 01-102 dated 22 Jan 93 reflects an incorrect social security number.  

AIR FORCE EVALUATION:

AFPC/DP3AM recommends denial for amendment of the DD Form 214 to reflect he served in Laos.  A review of his records did not contain information he served in Laos.  The complete submission is at Exhibit C.

ARPC/DPTT recommends denial for the SBP annuity.  The former service member made a final election on his DD Form 2656, for Option A, “I elect not to participate in SBP.”  Per 10 U.S.C. § 1448(a)(4)(A) Standard annuity – an election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.  The complete submission is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 4 Sep 18 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.    After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  Based on the notarized DD Form 2656, it appears the applicant consented to the declination for SBP as required by 10 U.S.C. § 1448(a).  In view of this, while we are sympathetic to the applicant’s plight, there is no evidence of an error or injustice to warrant granting SBP spouse annuity and doing so would be an injustice to members who made timely elections for SBP coverage and paid the required premiums.   The applicant also requests SBP child coverage for her adopted son.  However, as pointed out by the applicant, the adoption was not approved at the time of her husband’s death; therefore, the request for child SBP coverage is without merit.  With respect to the request his DD Form 214 be amended to show boots on ground in Laos, as pointed out by AFPC/DP3AM, there is no evidence the former service member served in Laos.  In view of the above, we agree with the opinions and recommendations of ARPC/DPTT and AFPC/DP3AM that the applicant has not sustained her burden of proof to warrant granting the requested relief.  The applicant also requests the former service member’s OPM records and Army Special Order Special Order 01-102 dated 22 Jan 93 be corrected.  However, this Board, which serves on behalf of the Secretary of the Air Force is without authority to correct a record issued by another Military Department or Agency.   The applicant may submit a DD Form 149, Application for Correction of Military Record, to the Army BCMR for correction of his Army records.  The Board also recommends the applicant contact the appropriate office listed on www.opm.gov regarding any questions she may have concerning her husband’s federal civil service retirement.  In view of the above, we recommend against correcting the former service member’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.  
 
CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-01627 in Executive Session on 9 Oct 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following in Docket Number BC-2016-01627:

Exhibit A:	Application, DD Form 149, w/atchs, dated 10 Apr and 4 Jun 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Advisory opinion, AFPC/DP3AM, dated 29 Dec 16.
Exhibit D: Advisory opinion, ARPC/DPTT, w/atchs, dated 21 Aug 18.
Exhibit E:  Notification of advisory, dated 4 Sep 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9, regarding Docket Number BC-2016-01627.