RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02399
		INDEX NUMBER:  137.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to allow him to add his disabled daughter to his reduced spouse only coverage under the Survivor Benefit Plan (SBP).

___________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of his retirement from the Air Force he elected child coverage under the SBP.  His daughter was excluded once she turned 18 years old, and he added his spouse.  Her disability happened at birth.  He was not briefed, nor was he counseled that his daughter could remain on his SBP due to her disability.  This information was just recently briefed to him.

In support of his request, applicant provided a doctor’s letter, a letter from DFAS, and a DD Form 1172, Application for Uniformed Services Identification Card.

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

___________________________________________________________________

STATEMENT OF FACTS:

The applicant was married and he elected child only coverage under the Retired Serviceman’s Family Protection Plan (RSFPP) prior to his 1 Aug 69 retirement.  

The member elected spouse only SBP coverage based on a reduced level of retired pay during the initial open enrollment (21 Sep 72 – 20 Mar 74) that followed the Plan’s implementation.  All of his children lost eligibility for the RSFPP prior to 1978.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommends denial.  Members were required to be briefed and make an RSFPP election prior to completing 19 years of service.  The RSFPP was a voluntary program fully supported by participants and had no government subsidy.  Eligible children covered under the RSFPP remained eligible until age 18 or 23, if unmarried and a full time student.  A child, who is diagnosed to be incapable of self-support prior to age 18 or 23 if an unmarried full-time student, remains an eligible beneficiary for life.  An RSFPP beneficiary may receive both an RSFPP and an SBP annuity.  Public Law (PL) 92-425, which established the SBP on 21 Sep 72, authorized an enrollment period for retired members to elect SBP coverage.  Members could either terminate or keep their RSFPP in addition to electing or declining SBP.

The member’s claim that he elected child coverage under the SBP is without merit.  The applicant claims his daughter became handicapped in 1975 at age 20, but he provided no evidence verifying she was a full time student at that time.  If his daughter’s disability was diagnosed while she was otherwise eligible, the member could have elected coverage on her behalf during the initial open enrollment; however, there is no evidence such an election was submitted.  SBP is similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage.

PLs 97-35, 101-189 and 105-261 authorized three SBP open enrollment periods:  1 Oct 81 – 30 Sep 82, 1 Apr 92 – 31 Mar 93, and 1 Mar 99 – 29 Feb 00.  Members were advised by direct mail of their eligibility to make an election.  The enrollment packets, as well as the Afterburner, USAF News For Retired Personnel, published during those timeframes, were sent direct mail to the correspondence address members had provided to the finance center and contained toll-free numbers and points of contact for retirees to use to gain additional information.  The open enrollments of 81-82 and 92-93 did not permit participants with SBP spouse coverage to add an eligible child.

A complete copy of the evaluation, with attachments, is attached at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides a letter from his daughter’s current doctor indicating her handicap occurred at birth.  He also submits a letter from Radcliffe Infirmary, Oxford England, indicating diagnosis and treatment of his daughter at the age of 10 days old.  He stated that at age five, his daughter was sent to a USAF Hospital for evaluation of her convulsive state and cerebral damage and possible surgery.  The surgery was determined to be too dangerous.  At age 10, his daughter was scheduled for consultation at Walter Reed Hospital; it was again determined surgery was too dangerous, so she remained on medication.

Applicant’s complete submission, with attachments, is at Exhibit D.

___________________________________________________________________

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 error or injustice.  After careful review of the evidence provided, it appears the applicant’s daughter has been permanently incapacitated and incapable of self-support since 10 days of age.  In view of this, the applicant could have established survivor coverage in her behalf under the Survivor Benefit Plan (SBP).  The applicant contends he was not briefed or counseled that his daughter could remain a beneficiary of his SBP coverage due to her disability.  In this regard, we note the applicant elected to participate in the SBP program during the initial open enrollment following the Plan’s implementation, three years after his retirement from the Air Force.  We believe the applicant would have elected to provide coverage for his daughter had he been aware that she would have remained an eligible beneficiary for life based on her disability.  Therefore, we recommend that the records be corrected as indicated below.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

    a.  His daughter, XXXXXXXXXXXXXXX, was incapable of self-support and, on 21 Sep 72, he elected spouse and child coverage under the Survivor Benefit Plan based on reduced retired pay.

    b.  Effective 1 Oct 72, he terminated his Retired Serviceman’s Family Protection Plan coverage.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2004-02399 in Executive Session on 2 December 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 22 Jun 04, w/atchs.
     Exhibit B.  Letter, HQ AFPC/DPPTR, dated 2 Sep 04.
     Exhibit C.  Letter, SAF/MRBR, dated 10 Sep 04.
     Exhibit D.  Letter, Applicant, dated 30 Sep 04, w/atchs.

AFBCMR BC-2004-02399

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

		a.  His daughter, xxxxxxxxxxxxx, was incapable of self-support and,on 21 Sep 72, he elected spouse and child Survivor Benefit Plan coverage based on reduced retired pay.

		b.  Effective 1 Oct 72, he terminated his Retired Serviceman’s Family Protection Plan coverage.