RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01636 

						COUNSEL: NONE 

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her deceased spouse’s record be corrected to show he elected spouse coverage at the full retirement rate for the Survivor Benefit Plan (SBP) and designated her as the beneficiary.

APPLICANT CONTENDS THAT:

Her spouse declined SBP coverage; however, she was not informed he had done this and believes her consent was necessary for him to decline SBP coverage by her signing a statement.  By her sworn statement, she states she was never notified of her spouse’s declination of the SBP.

She just learned about the SBP program while visiting a VA office.  If approved, she understands she may need to pay back premiums.

She has provided a marriage affidavit attesting that she has not remarried.

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

STATEMENT OF FACTS:

On 29 Dec 62, the applicant and member were married.

On 1 Apr 73, the member was retired with 20 years and 25 days of active service.   

On 13 Sep 99, the member passed away.

On 23 Aug 16, the applicant executed a SBP-Marital Status Affidavit (Deceased Retiree) indicating she has not remarried.

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 granting relief to the applicant’s request as there is evidence of an error or an injustice.  Microfiche records from the Air Force Accounting and Finance Center (AFAFC) show the member declined SBP coverage prior to his 1 Apr 73 retirement. Finance records are routinely destroyed six years after a retiree’s death, and there is no longer a copy of the member’s election form, or other evidence that the required notice was sent to the applicant.  

The SBP requires the spouse be informed when a member declines or elects less than maximum spouse coverage.  The U. S. Court of Claims has consistently ruled widows of members retiring after SBP’s implementation, who were not given notice of their sponsor’s election, are entitled to full SBP coverage.  The spouse notification requirement ensures spouses, upon the sponsor’s death, do not learn for the first time they were not covered by SBP.  In this case, there is no record the required notice was sent to the applicant, and the applicant has provided a sworn statement that the notification was not received.  To explain her over 15-year delay in seeking corrective action since the member’s death, the applicant claims she was not aware of the program until recently when she was at an appointment at the Veterans Administration (VA) office.  If relief is granted, the unpaid contributions to the SBP that would have been deducted from the member’s retired pay through the date of his death (approximately $27,000) will be collected from any annuity payment the applicant would be entitled to receive. 

AFPC/DPFFF recommends the decedent’s records be corrected to show on 31 Mar 73 he elected spouse SBP coverage based on full retired pay.  Approval should be contingent upon recovery of SBP premiums.  The monthly SBP annuity will be applied to the premium debt until the total amount of premiums owed is recovered.

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 Nov 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 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 OPRs and adopt their rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  There is no evidence the SBP spouse notification requirement required by law was fulfilled and the applicant has completed a sworn statement she did not receive notification her spouse had declined to participate in the SBP.  Therefore, we recommend the applicant'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 deceased spouse of the APPLICANT be corrected to show that:

a.	On 31 March 1973, he elected spouse Survivor Benefit Plan coverage based on full retired pay, naming NORMA F. OGELSBY as the annuitant.

b.	The Survivor Benefit Plan coverage will be contingent on the recovery of any premiums due.

The following members of the Board considered AFBCMR Docket Number BC-2016-01636 in Executive Session on 21 Jun 17 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-2016-01636 was considered:

	Exhibit A.  DD Form 149, dated 20 Apr 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 26 Oct 16.
	Exhibit D.  Letter, SAF/MRBR, dated 8 Nov 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 matter.