RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-03555

						COUNSEL:  NONE
(DECEASED SERVICE MEMBER)

 		HEARING DESIRED:  NO
(APPLICANT)

APPLICANT REQUESTS THAT:

His deceased spouse’s Survivor Benefit Plan (SBP) coverage be changed from child only coverage to spouse and child coverage or in the alternative spouse only.

APPLICANT CONTENDS THAT:

His former spouse died prior to choosing an SBP.  His SBP choice was made for him without an explanation.  He was told he would get more money and would be better for tax purposes.  However, he was never informed SBP ends when children are out of school.

He does not know what the options are and the differences between them.  He was under the impression that the SBP was a lifetime benefit and only learned otherwise after his youngest child turned 18 years old.

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

STATEMENT OF FACTS:

On 1 Jun 78 the applicant and the service member were married.  

On 8 Feb 03, the service member was released from active duty.  

On 9 Feb 03, the service member was placed on the Temporary Disability Retired List (TDRL) and passed away on the same date.    

On 7 Nov 16, the AFBCMR staff requested the applicant provide a notarized marital status affidavit.  On 18 Nov 16, the applicant provided a notarized affidavit, which indicated he was not currently married.    

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 E.  

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial, indicating there is no evidence of an error or an injustice and no basis in law to grant relief.  

PL 108-136, 24 Nov 03, permits the Secretary concerned, after consulting with the member’s spouse, to waive the spouse’s active duty death SBP entitlement and to pay the SBP to eligible dependent children instead of the surviving spouse.  This provision applies to members who die on active duty after 10 Sep 01, and their deaths are considered to have been in the line of duty (LOD).  Waiving the spouse’s SBP and paying the children instead eliminates the integration between SBP and Dependency and Indemnity Compensation (DIC), the benefit paid by the Department of Veterans’ Affairs (DVA) to surviving spouses of members who die of a service-connected cause.  Since a child’s SBP is not subject to the DIC offset, paying SBP to the children vice the spouse enhances the family’s total income. 

Furthermore, beginning 18 Apr 08, surviving spouses whose SBP was offset by DIC, became entitled to a Special Survivor Indemnity Allowance (SSIA) of $50 per month.

The deceased service member and the applicant were married with three children, with the youngest being age five at the time of her death.  On 11 Feb 03, the Casualty Assistance Representative (CAR) briefed the applicant on the SBP and assisted him in completing the DD Form 1884, Application for Annuity Under the Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP), to claim payment for spouse only SBP annuity.  According to the Casualty Assistance Summary, on 10 Jun 03, the CAR was informed that SBP was changed to spouse payment and the payments had been reduced by DIC; however, the applicant wanted child only SBP to allow maximum benefits to be payable when the children were in the household.  The SBP was changed to child only coverage and the applicant received full SBP payments for the children, to include DIC for himself and the children.  The applicant continued to receive the SBP annuity as the legal representative for the eligible children until the youngest child reached the age of majority and was considered an adult for annuity purposes.  

On 24 Sep 15, the Defense Finance and Accounting Service (DFAS) notified the applicant’s youngest child that she would be eligible to receive the annuity payments without a legal representative and requested banking information for deposit of the SBP annuity.  On 1 Dec 15, she received retroactive SBP annuity payments of over $13,000.  On 1 Dec 16, the SBP annuity of $1,420 was suspended due her failure to complete and return a DD Form 2788, Child Annuitant’s School Certification, to verify she was a full-time student.  The SBP annuity may be reinstated for her after she provides verification to DFAS that she is enrolled in a full-time course of study or training at a recognized educational institution.

To grant relief of the applicant’s request would provide him an opportunity not afforded other surviving spouses who chose child only coverage, and is not justified by the facts.

A complete copy of the AFPC/DPFFF evaluation, with attachments, is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 27 Sep 17, for review and comment within 30 days (Exhibit F).  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 timely filed.

3.  Insufficient 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; however, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2016-03555 in Executive Session on 15 Mar 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

		, Panel Chair
		, Member
		, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Aug 16, w/atchs.
	Exhibit B.  Excerpts from Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 7 Nov 16.
Exhibit D.  Applicant’s Signed Affidavit, date 18 Nov 16.
Exhibit E.  Memorandum, AFPC/DPFFF, dated 20 Apr 17,
  w/atchs.
	Exhibit F.  Letter, AFBCMR, dated 27 Sep 17.

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.