RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02739 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her deceased husband’s record be corrected to show that he elected spouse coverage, at the full level, under the Survivor Benefit Plan (SBP), naming her as beneficiary. APPLICANT CONTENDS THAT: Her late husband never discussed military matters with her. He made the decision to decline Survivor Benefit Plan (SBP) on his own. She has since been informed she should have been notified by the Air Force that her late husband elected to decline SBP. She would like the record to be corrected so she can receive the SBP. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The former military member initially entered the Regular Air Force on 25 Jun 54. On 27 Jun 59, the applicant and former military member were married. On 1 Jul 74, the former military member retired, and was credited with 20 years and 6 days of active service. On 12 Jun 14, the former military member passed away. On 31 Jul 14, the AFBCMR marital status affidavit was forwarded to the applicant. (Exhibit C). On 6 Aug 14, the applicant responded with a signed and notarized affidavit, dated 6 Aug 14, indicating that she is a widow. (Exhibit D). 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 E. AIR FORCE EVALUATION: AFPC/DPFFF recommends granting the applicant the requested relief to correct the record to show that on 30 Jun 74, the deceased elected spouse SBP coverage based on full retired pay. Approval should be contingent upon recovery of SBP premiums that the decedent would have paid had he made the election at that time. 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 (Cl. Ct. 1982); Dean v. U.S., 10 Cl. 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 applies only to members retiring on or after 1 Mar 86. The applicant and the decedent were married on 27 Jun 59. Defense Finance and Accounting Service (DFAS) records indicate that the member declined SBP coverage prior to his 1 Jul 74 retirement. The member's election form could not be located by DFAS-Cleveland Center (DFAS-CL) and there is no evidence the required notice was sent to the applicant. The member died on 12 Jun 14. In the event relief is granted, the unpaid contributions to the SBP that would have been deducted from the member's retired pay through the date of his death (approximately $116,000) must be collected before the applicant would be entitled to receive SBP payments (approximately $956 per month). A complete copy of the AFPC/DPFFF evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 Oct 14, for review and comment within 30 days (Exhibit F). 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case. After thoroughly reviewing the evidence submitted, we are persuaded the applicant is entitled to the relief she seeks. There is no evidence the applicant received the required notice, in accordance with Public Law 92-425. Therefore, we agree with the Air Force evaluation and adopt its rationale as the basis for relief. Though we recommend relief, we note that no premiums have been paid toward SBP on the applicant’s behalf. Accordingly, we agree with the Air Force evaluation that approval should be contingent upon recovery of any SBP premiums that will be due as a result of the recommended correction. Therefore, we recommend the record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER MILITARY MEMBER be corrected to show that a. on 30 June 1974, he made a timely and effective election for spouse only coverage under the Survivor Benefit Plan (SBP) based on full retired pay. b. On 13 June 2014, his widow submitted a timely and effective claim for survivor benefit annuity. c. Approval should be contingent upon recovery of SBP premiums. The monthly SBP annuity will be applied to the premium debt until the total amount of premiums owed is recovered. The following members of the Board considered AFBCMR Docket Number BC-2014-02739 in Executive Session on 15 Jun 15, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02739 was considered: Exhibit A. DD Form 149, dated 25 Jun 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR, dated 31 Jul 14. Exhibit D. Signed Affidavit, dated, 6 Aug 14. Exhibit E. Memorandum, AFPC/DPFFF, dated 3 Sep 14. Exhibit F. Letter, SAF/MRBR, dated 27 Oct 14.