RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03356 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband’s records be corrected to entitle her to a Survivor Benefit Plan (SBP) annuity based on full spouse coverage. _________________________________________________________________ APPLICANT CONTENDS THAT: Her husband did not discuss any of his decisions with her. She does not recall receiving a letter from the Air Force informing her of her spouse’s decision to decline SBP participation. Her spouse believed his military career was his and would only inform her after the fact. In support of her request, the applicant provides copies of the decedent’s DD Form 214, Certificate of Release or Discharge from Active Duty; death and marriage certificates, a sworn statement and DOH/CHS 023a, Affidavit for Correction. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 8 Dec 72, the decedent and the applicant were married. According to the Defense Finance and Accounting Service (DFAS) the decedent declined SBP coverage prior to his 1 Sep 75 retirement. His election form could not be located by DFAS- Cleveland Center (DFAS-CL) and there is no evidence the required notice was or was not sent to the applicant. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends approval. 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 the 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 (Cl. Ct. 1982); Dean v. U.S., 10 Cl 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 applies only to members retiring on or after 1 Mar 86. The intent of the spouse notification requirement was to ensure spouses, upon the sponsor’s death, did not learn for the first time they were not covered by SBP. 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. If the Board grants relief, the unpaid contributions to the SBP that would have been deducted from the decedent’s retired pay through the date of his death (approximately $80,000) must be collected before the applicant would be entitled to receive SBP payments (approximately $774.00 per month). The complete DPFFF evaluation is at Exhibit B. _________________________________________________________________ APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 19 Sep 13, for review and comment within 30 days (Exhibit C). 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. After a thorough review of the facts and circumstances of this case, we agree with the recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision the decedent’s records should be corrected to reflect that he elected spouse SBP coverage. Therefore, in the interest of justice, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER MEMBER be corrected to show that on 31 August 1975, he elected spouse-only coverage under the Survivor Benefit Plan (SBP) based on full retired pay. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03356 in Executive Session on 15 May 14, under the provisions of AFI 36-2603: Vice Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Jul 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 2 Sep 13. Exhibit C. Letter, SAF/MRBR, dated 19 Sep 13. 1 2