RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2015-05378

XXXXXXXXXXXX   (DECEASED)	COUNSEL:  NONE

XXXXXXXXXX (APPLICANT)		HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

She be provided with a Survivor Benefit Plan (SBP) annuity.

APPLICANT CONTENDS THAT:

She never received notification her deceased spouse declined SBP coverage for her at the time of his retirement.

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

STATEMENT OF FACTS:

On 17 Oct 52, the deceased former military member initially entered the Regular Air Force. 

On 29 Feb 56, the applicant and deceased former military member were married.

On 1 Jun 79, the deceased former military member was furnished an Honorable discharge, and was credited with 26 years, 7 months, and 14 days of active service.

According to the State of Oklahoma Certificate of Death, Book 1508, Page 196, the decedent died on 25 Sep 00 and was married to the applicant at the time of death.

On 17 Aug 16, a copy of the AFBCMR Marital Status Affidavit was forwarded to the applicant (Exhibit E).  As of this date, no response has been received by this office.

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 granting the applicant’s request indicating there is evidence of an error or an injustice.

Public Law (PL) 92-425, which established the SBP effective 21 Sep 72, required the spouse to 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 spouse’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 SBP elections until passage of PL 99-145, which applied only to members retiring on or after 1 Mar 86.

While the Defense Finance and Accounting Service (DFAS) records indicate the member declined SBP coverage prior to his retirement, the member’s election form could not be located by DFAS, and there is no evidence the required notice was or was not sent to the applicant.

Claims for SBP payments are subject to the six-year statute of limitations, and the applicant should have applied for correction before Oct 2009.  The applicant offers no explanation for delaying over 15 years following the military member’s death before she sought correction.

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 $74,000) will be collected from any annuity payment the applicant would be entitled to receive, if the statute of limitations is set aside.

A complete copy of the 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 14 Jul 16 for review and comment within 30 days (Exhibit D).  This notification was followed by an email to the applicant regarding the payment of premiums should her request be approved (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 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.  We took notice of the applicant’s complete submission in judging the merits and conclude the applicant has been the victim of an error or injustice.  After thoroughly reviewing the circumstances of this case, we note the comment of AFPC/DPFFF indicating claims for SBP payments are subject to the six-year statute of limitations, and the applicant offers no explanation for delaying over 15 years following the military member’s death before she sought correction.  However, we believe the delay was attributed due to the applicant not being aware of the requirement or the process for requesting an SBP annuity.  Moreover, AFPC/DPFFF recommends correcting the record to show that the former member did make a timely spouse election.  We note the applicant provides a statement indicating she understands that if her request is approved, the unpaid contributions to the SBP that would have been deducted through the date of the former member’s death will be collected from any annuity payment she would be entitled to receive.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  Therefore, we recommend the applicant’s record be corrected as indicated below.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the DECEASED be corrected to show that:

	a.  On 31 May 1979, he elected spouse coverage, under the Survivor Benefit Plan (SBP), based on full retired pay, naming APPLICANT as the beneficiary, contingent upon recovery of SBP premiums.

	b.  On 30 September 2009, 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-2015-05378 in Executive Session on 27 Apr 17 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05378 was considered:

	Exhibit A.  DD Form 149, dated 16 Dec 15, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 30 Jun 16.
	Exhibit D.  Letter, AFBCMR, dated 14 Jul 16, w/atch.
	Exhibit E.  Letter, AFBCMR, dated 17 Aug 16 w/atch.
	Exhibit F.  Email, AFBCMR, dated 27 Apr 17.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.