RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02755 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: She be entitled to benefits under the Survivor Benefit Plan (SBP). ____________________________________________________________ _____ APPLICANT CONTENDS THAT: She does not believe her late husband understood the SBP entitlements and elected not to take it. In support of her request, the applicant provides a personal statement; copies of the deceased member’s Death Certificate, marriage license, and other documents. The applicant's complete submission, with attachments, is at Exhibit A. ____________________________________________________________ _____ STATEMENT OF FACTS: The applicant and the service member were married on 30 Jul 55. The Defense Finance and Accounting Service (DFAS) records indicate the decedent declined SBP coverage prior to his 1 Nov 76 retirement. The applicant provided a copy of the spouse notification letter, dated 23 Jul 76, sent to her by McChord AFB WA, as required by law, informing her of the decedent's decision to decline SBP coverage upon his retirement. The former member died on 30 Apr 11. Other relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ____________________________________________________________ _____ AIR FORCE EVALUATION: AFPC/DPSIAR recommends denial, stating, in part, that there was no error or injustice in the case. They note, in the event relief is granted, the retroactive SBP premium debt is approximately $126,200. Public Law (PL) 92-425, which established the SBP effective 21 Sep 72, required that the spouse be informed when a married member declined or elected less than maximum spouse coverage. The U.S. Court of Claims has consistently ruled that widows of members retiring after SBP's implementation, who were not given notice of the sponsor's election, are entitled to full SBP coverage-Barber v. U.S., 676 F.2d 651 (CI. Ct. 1982); Dean v. U.S., 10 CI. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 1049 (Fed Cir. 1987)--commonly called Barber cases. There was no requirement for spouses to concur in the SBP elections until passage of PL 99-145 and applied only to members retiring on or after 1 Mar 86. In this case, although this applicant claims she does not remember seeing the notification letter when the decedent declined SBP coverage prior to his retirement, clearly the spouse notification letter was sent to her by the Air Force as required by law. Furthermore, the decedent had four post-retirement open enrollment opportunities to obtain additional information about the SBP and elect coverage on the applicant's behalf but failed to do so. Unfortunately, based on the facts of this case, the applicant does not meet the criteria as a Barber widow and the Air Force has no authority to pay her an SBP annuity. It would be inequitable to those members who chose to participate when eligible and subsequently received reduced retired pay, and to other widows whose sponsors chose not to participate, to provide entitlement to this widow on the basis of the evidence presented. The complete AFPC/DPSIAR evaluation is attached at Exhibit C. ____________________________________________________________ _____ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 2 Sep 11 for review and comment within 30 days. As of this date, no response has been received by this office (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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission, including her late husband’s military records in judging the merits of the case; however, while we sympathize with the applicant, the Air Force office of primary responsibility (OPR) has conducted an exhaustive review of the available evidence and we are in agreement with its opinion and recommendation. Therefore, we adopt the rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ____________________________________________________________ ____ 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 newly discovered relevant evidence not considered with this application. _______________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02755 in Executive Session on 29 May 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Jul 11, w/atchs. Exhibit B. Decedent's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIAR, dated 19 Aug 11. Exhibit D. Letter, SAF/MRBR, dated 2 Sep 11. Panel Chair