RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03063

XXXXXXXXXXXXXXXXX	COUNSEL: NONE	

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

Her Survivor Benefit Plan (SBP) be terminated.

APPLICANT’S CONTENTIONS

She was automatically placed on SBP at the time of her retirement. She never received a formal retirement briefing nor was she given the option to elect or not elect SBP prior to leaving military service.  She has been permanently and totally disabled since leaving active duty and is being compensated as such by the Department of Veterans Affairs (DVA).

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

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).

On 29 Jul 11, the applicant was placed on the Temporary Disability Retired List (TDRL) with compensable percentage for physical disability of 70 percent.

Effective 3 Jul 12, the applicant was removed from the TDRL and retired in the grade of master sergeant with a compensable percentage of 70 percent for physical disability.

On 4 May 20 the applicant’s spouse provided a notarized statement concurring with her decision to decline SBP coverage on 28 Jul 11.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

ARPC/DPFF recommends denying the application because there is no evidence of an Air Force error or injustice in this case.  On 11 Sep 18, the VA Regional Office notified the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) that the applicant was totally (100%) disabled on 31 Oct 14; therefore, the applicant will not be eligible to withdraw from the SBP until 31 Oct 24.  The Defense Enrollment Eligibility Reporting System shows the applicant was married and had dependent children prior to being placed on the TDRL effective 29 Jul 11.  There is no evidence the applicant was properly briefed on the options and effects of the SBP or made an SBP election prior to retirement.  Absent a valid election, DFAS-CL properly established spouse and child coverage based on full-retired pay to comply with the law.  In Jun 17, the applicant’s disability compensation from the DVA exceeded her retired pay and a direct remittance account to recover SBP monthly costs was established.  The applicant was billed monthly for SBP payments by DFAS-CL and, to date, has acquired a direct remittance debt of approximately $21,752.  In the event of the applicant’s death, her husband is currently entitled to receive SBP payments of approximately $1,724 per month.  

Title 10 USC, Section 1448a(a), provided a one-year period beginning on the 25th month and ending on the 36th month following commencement of retired pay, when the applicant could have voluntarily discontinued her participation in the SBP.  However, the applicant did not submit a request to DFAS-CL to discontinue participation beginning 29 Jul 13 - 28 Jul 14 as authorized by law.  On 23 Oct 18, DFAS-CL sent the applicant a letter requesting she complete a DD Form 2656-8, SBP Automatic Coverage Fact Sheet, and return to them, but the form was never returned.  The applicant offers no explanation for delaying over eight years following her retirement before she sought correction.  Approval of this request would provide the applicant an opportunity not afforded other retirees.

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 15 Aug 19 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of AFPC/DPFFF against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  There is no evidence that the applicant was properly briefed on SBP options or elections.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 28 July 2011, she elected to decline Survivor Benefit Plan coverage and her spouse concurred with her decision on that date.

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-2019-03063 in Executive Session on 20 Feb 20:

, Panel Chair
, Panel Member
, Panel Member

A majority of the panel voted to correct the record.  XXXXXXXX voted not to correct the record and did not provide a minority opinion.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 Jan 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, w/atchs, AFPC/DPFFF, dated 13 Aug 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 15 Aug 19.

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.