RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04170 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The deceased former member’s records be corrected to reflect he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP), naming the applicant as the beneficiary. ________________________________________________________________ APPLICANT CONTENDS THAT: She never signed anything which gave up her rights to receive the former member’s SBP annuity. He retired on 30 Sep 85 and died on 14 May 10. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF only recommends approval if the applicant submits a sworn statement affirming she did not receive a notice her prior spouse elected to terminate spouse coverage. Public Law (PL) 92-425, effective 21 Sep 72, required 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 widows of members retiring after SBP’s implementation, who were not given notice of the sponsor’s election, are entitled to full SBP coverage. There was no requirement for spouses to provide their written concurrence in the SBP elections until passage of PL 99-145 and it applies only to members retiring on or after 1 Mar 86. The applicant and the deceased former member were married on 10 Jul 72. The member selected spouse and child coverage based upon full retired pay under SBP, following his 1 Oct 85 retirement. The deceased former member’s records show he later declined SBP coverage and SBP premiums were not deducted from his pay, but there is no explanation of the reason spouse and child coverage were terminated. There is no evidence the required notice was sent to the applicant. The deceased former member died on 14 May 10. On 14 Nov 12, DPFFF requested the applicant provide a sworn statement under penalty of perjury stating she did not receive the required notice. To date, the applicant has not responded to that request. In the interest of justice, it would be appropriate to grant relief and correct the decedent’s record to reflect the elected spouse and child SBP coverage based upon full retired pay effective 1 Oct 85, and the youngest child lost eligibility effective 1 Jul 97. However, approval should be contingent upon the applicant providing an acceptable sworn statement. The complete 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 27 Dec 12 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After careful consideration of applicant's request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action. The facts and opinions stated in the advisory opinions appear to be based on the evidence of record, and the applicant has not responded their request for additional information. Therefore, absent the applicant providing a sworn statement verifying she did not receive the required notice of her former spouse’s declination of SBP coverage, we find no basis to disturb the existing record. ________________________________________________________________ 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-2012-04170 in Executive Session on 7 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 31 Sep 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFFF, dated 11 Dec 12. Exhibit D. Letter, SAF/MRBR, dated 27 Dec 12.