RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00125 COUNSEL: NONE (DECEASED) (APPLICANT) HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her late-spouse’s records be corrected to reflect he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT CONTENDS THAT: Her late-spouse told her she was covered as the beneficiary under SBP. She was never informed that she was not covered under SBP. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the documents provided by the applicant, the former service member retired from the Regular Air Force (RegAF) on 1 Jan 82 and passed away on 14 Mar 08. The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFFF recommends the requested relief be granted. On 21 Sep 72, SBP was established. Under the provisions of SBP, the spouses of married service members had to be informed when the service member declined SBP coverage, or elected less than the maximum level of coverage. The United States (U.S.) Court of Claims ruled that widows of service members who retired after the implementation of SBP, who were not given notice of the service member’s election, are entitled to full SBP coverage (Barber cases). However, spouses were not required to provide written concurrence with SBP election until the passage of Public Law (PL) 99-145, which applied only to service members who retired after 1 Mar 86. The applicant and the late service member were married on 8 Aug 80. According to the Defense Finance and Accounting Service (DFAS) the late service member declined spouse SBP coverage prior to his 1 Jan 82 retirement. DFAS could not locate the late service member’s election form or find any evidence showing whether the notice was or was not sent to the applicant. The former service member died on 14 Mar 08. The spouse notification requirement was intended to ensure that spouses, upon the service member’s death, didn’t learn for the first time that they were not covered by SBP. The facts of this applicant’s case are essentially the same as in the Barber cases, and there is no record the notice was sent to the applicant and she has provided a sworn statement indicating she did not receive the notification. However, if relief is granted the unpaid premiums ($134,600) would have to be recouped prior to the applicant receiving the annuity. A complete copy of the AFPC/DPFFF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states she is receiving Social Security and Death Indemnity Compensation (DIC) and is concerned about the recovery of the unpaid SBP premiums. She wonders how the amount owed was determined, and if any percentage of the sum owed can be deducted from the SBP payment; because this would assist her in determining if she can accept the SBP if the Board grants relief. The applicant’s complete response, with attachment, is at Exhibit C. 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 opinion and recommendation of the Air Force office of primary responsibility (OPR) that the former service member’s records should be corrected to reflect that he made a valid election for spouse coverage, based on full retired pay effective 31 Dec 81. We note the applicant’s concerns regarding the financial hardship she may incur due to debt for the unpaid premiums. However, the Air Force OPR has confirmed that the monthly SPB annuity will be applied to the debt for the unpaid premiums until the total amount of the premiums owed are recovered and, thus, will not result in any out of pocket costs to the applicant. Therefore, we recommend the applicant's records be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEDENT be corrected to show that: a. On 31 December 1981, he elected spouse coverage under the Survivor Benefit Plan, based on full retired pay, naming APPLICANT as the beneficiary, contingent upon recoupment of any applicable premiums. b. On 15 March 2008, his widow submitted a timely and effective claim for survivor benefit annuity. c. Approval should be contingent upon recovery of SBP premiums, which must be paid prior to the applicant receiving SBP payments. The following members of the Board considered AFBCMR Docket Number BC-2014-00125 in Executive Session on 6 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFFF, dated 13 Mar 14. Exhibit D. Letter, SAF/MRBR, dated 5 Aug 14. Exhibit E. Letter, Applicant, dated 10 Aug 14.