RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-02773

  			COUNSEL:  NONE

			HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

Her deceased husband’s records reflect he opted for the 
Survivor’s Benefit Plan (SBP) and that she is now eligible for 
it due to his death.


APPLICANT CONTENDS THAT:

It was her impression her husband selected SBP upon retirement, 
but having been informed he did not, she is at a loss as to why.

The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

On 15 Jan 62, her husband entered the Regular Air Force.

On 31 Jul 82, he received an honorable discharge, and was 
credited with 20 years, 6 months and 16 days of active service.   

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force office of 
primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial indicating there is no evidence of 
an error or an injustice.  Defense Enrollment Eligibility 
Reporting System (DEERS) records show the applicant and the 
decedent were married on 27 Jul 63.  Defense Finance and 
Accounting Service (DFAS) records indicate that the member 
declined SBP coverage prior to his 1 Aug 82 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 or was not sent to the applicant.  The member died on 16 Jun 
14.  

The intent of the spouse notification requirement was to ensure 
spouses, upon the sponsor’s death, didn’t learn for the first 
time they weren’t covered by SBP.  While the decedent’s retired 
pay records contain no evidence the applicant received notice, 
review of SBP management historical files reveal the Air Force 
Accounting and Finance Center (AFAFC) did not routinely capture 
or retain that document.  Nevertheless, there is a strong 
presumption that administrators of the Air Force, like other 
public officers, discharged their duties correctly, lawfully, 
and in good faith.  The absence of a copy of the notification 
letter is not a matter of malfeasance; rather, it is a 
reflection of AFAFC’s failure to understand the importance of 
these letters, or to retain them in a retrievable format.   

Public Law (PL) 92-425, which established the SBP effective 21 
Sep 72, required the spouse be informed when a 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 their 
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 provide their written concurrence in the election 
until passage of PL 99-145, which applied only to members 
retiring on or after 1 Mar 86.

On 12 Aug 14, DPFFF requested the applicant provide a sworn 
statement under penalty of perjury that she did not receive the 
required notice.  To date, the applicant has not responded to 
our request.  Receipt of a sworn statement satisfies the basic 
parameters of a non-notification claim for Barber type cases.        

The complete 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 10 Oct 14 for review and comment within 30 days 
(Exhibit D).  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.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
notice of the applicant’s complete submission, to include copies 
of the applicant’s husband’s DD Form 214, retirement special 
order, marriage and death certificates, and armed forces 
identification card, in judging the merits of the case; however, 
we agree with the opinion and recommendation of the Air Force 
office of primary responsibility and adopt its rationale as the 
basis for our conclusion the applicant has not been the victim 
of an error of injustice.  The Board would be willing to 
reconsider her request upon receipt of the applicant’s affidavit 
stating she did not receive the required SBP notice.  However, 
in the absence of such an affidavit, we are unable to recommend 
granting the requested relief.  


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 documentary evidence AFBCMR Docket Number 
pertaining to BC-2014-02773 was considered:

	Exhibit A.  DD Form 149, dated 30 Jun 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 28 Aug 14.
	Exhibit D.  Letter, SAF/MRBR, dated 10 Oct 14.