RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01364

XXXXXXXXXX	COUNSEL: NONE

XXXXXXXXXX	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her late spouse’s record be changed to show he timely elected spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

The Defense Finance and Accounting Service (DFAS) Center did not provide proof that her late spouse did not elect to participate in the SBP.  During 42 years of marriage, her late spouse indicated that she would receive all benefits after his death.  His family and coworkers can confirm this information.

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

STATEMENT OF FACTS

The applicant is the surviving spouse of a retired Air Force master sergeant (E-7).

On 31 July 1976, the applicant and the service member were married.

On 1 July 1967, the service member retired from active duty.  He was credited with  20 years and 6 days of active service for retirement.

On 16 May 2018, the service member passed away.

On 14 May 2019, the Board sent the applicant the following standard form, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP-Marital Status Affidavit (Deceased Retiree); On 11 October 2019, the applicant returned the completed affidavit.

For more information, see the excerpt of the service member’s record at Exhibit B and the advisory at Exhibit E.

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application.  Survivors of military retirees may continue to receive a portion of the sponsor’s retired pay only if the member was a participant in one of the annuity plans offered by the Department of Defense.  The Retired Serviceman’s Family Protection Plan (RSFPP) was in effect until 21 September 1972.  Members were briefed and required to make their RSFPP elections before completing 18 years of service.  Spouse notification was not required.  The RSFPP has several unattractive features and less than 15 percent of members retired during its existence enrolled.

Public Law (PL) 98-425, which established the SBP on 21 September 1972, authorized an enrollment period for retired members to elect SBP coverage.  SBP enrollment paces, as well as the Afterburner, USAF News for Retired Personnel, published during that timeframe, were sent to the address members provided the finance center and contained points of contact for retirees to use to gain addition information.  There were no provisions in this law that required the Services to notify a spouse if the member did not enroll.  Federal Appeals Court decision—Appeal 85-927, Helen Passaro v. U.S.--held that the notice provision does not apply to a service member already entitled to retired or retainer pay on September 1972.

Defense Enrollment Eligibility Reporting System (DEERS) records indicate the decedent and applicant were married on 31 July 1976.  The member did not enroll in the RSFPP prior to his 1 July 1967 retirement and there is no evidence he returned an election form during the initial SBP open enrollment period (21 September 1972 – 20 March 1974).  Prior to his 16 May 2018 death, the decedent had several opportunities to elect survivor protection for the applicant, but failed to do so during the established open enrollment periods (1 April 1992 – 31 March 1993, 1 March 1999 – 29 February 2000, and 1 Oct 2005 – 30 September 2006).  The Defense Finance and Accounting Services (DFAS), records confirm the member did not elect to participate in SBP and therefore denied applicant’s claim for SBP annuity on 7 July 2018, in the Defense Office of Hearings and Appeals (DOHA) decision.  Since that time, the applicant failed to provide any additional documentation to support her request.  Both the RSFPP and SBP are similar to commercial life insurance in that an individual must elect to participate and pay the associated premiums in order to have coverage.  It would be inequitable to those members who chose to participate when eligible and subsequently received reduced retired pay, and to other widows whose sponsors chose not to participate, to provide entitlement to this widow on the basis of the evidence presented.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 March 2020 for comment (Exhibit D), and the applicant replied on 7 April 2020.  In support of her appeal, the applicant provides witness statements and medical records.  The applicant’s complete response, with attachments, is at Exhibit G.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and her contentions were duly noted.  However, the Board does not find the applicant's assertions and the documentation presented in support of her request sufficiently persuasive to override the rationale provided by AFPC/DPFFF.  Therefore, the Board agrees with their opinion and recommendation and adopts the rationale expressed as the basis for their decision that the applicant has failed to sustain her burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, the Board find no basis to recommend granting the relief sought.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-01364 in Executive Session on 20 August 2020:

Mr., Panel Chair
Ms., Panel Member
Mr., Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 25 December 2018.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of affidavits, SAF/MRBC to applicant, dated 14 May 2019.
Exhibit D:	Applicant’s response, w/atchs, dated 11 October 2019.
Exhibit E:	Advisory opinion, AFPC/DPFFF, dated 11 February 2020.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 20 March 2020.
Exhibit G:	Applicant’s response, w/atchs, dated 7 April 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.