RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04929

XXXXXXXXXX (MEMBER)	COUNSEL: NONE
	
XXXXXXXXXX (APPLICANT)	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her Survivor Benefit Plan (SBP) election be changed from “Spouse and Child Coverage” to “Child Only Coverage” and she receive the associated back pay.

APPLICANT’S CONTENTIONS

Shortly after her husband’s death, she was pressured to make a quick decision on SBP election without having a clear understanding of the benefits.  Had she fully understood that her family would receive $1,000 less per month for 16 years, she would not have elected the “Spouse and Child Coverage.”  Her financial counselor explained how much better off her family would be with the extra income.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the surviving spouse of a retired Air Force technical sergeant (E-6).

DD Form 1300, Report of Casualty, dated 7 Dec 12, indicates on 18 Jan 12, the former service member passed away while on active duty.  His death was characterized in the line of duty. 

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application because there is no evidence of Air Force error or injustice in this case and no basis in law to approve this request.  The SBP is a voluntary program similar to commercial life insurance by which retirees can elect to participate and pay the associated premiums to ensure their eligible dependents receive a monthly annuity following the member’s death.  Public Law (PL) 107-107, 28 Dec 01, extended SBP eligibility to spouse and/or eligible children of all active duty deaths classified in the Line of Duty (LOD) since 10 Sep 10.  The monthly annuity is computed as if the member was retired with full disability rating on the date of death.

The applicant received her Casualty Assistance briefing from an Air Force Base Casualty Assistance Representative (CAR).  During the briefing, she was advised of the effects of two available SBP options: (1) Spouse and Child; (2) Child Only – Spouse Excluded.  She was provided the On-Line Survivor Benefits Reports (OSBRs) created specifically for survivors of all service members who died on active duty.  These reports illustrate estimated current and future monetary benefits from the Social Security Administration (SSA), Veterans Administration (VA) and SBP is invaluable for a family’s financial planning and reflects how each agency interrelates.  By law, when the spouse and child SBP option is elected, and the spouse is later awarded Dependency and Indemnity Compensation (DIC) from the VA, the Defense Finance and Accounting Service (DFAS) reduces the spouse’s SBP annuity dollar for dollar by the amount of DIC awarded.  SBP Child Only annuity is not offset by DIC.

Defense Enrollment Eligibility Reporting System (DEERS) records reflect that the former member was married to the applicant and had dependent children at the time of his 18 Jan 12 death.  The attached OSBRs used during the CAR briefing highlight the benefits of each option.  On 12 Feb 12, the applicant elected Spouse and Child SBP coverage, signed a Statement of Desired SBP Election acknowledging that she understood the dollar for dollar DIC offset and that the election was irrevocable.

Further, the applicant’s concern is that the DIC offset significantly reduces her monthly benefits entitlement.  The National Defense Authorization Act (NDAA) for Fiscal Year 2020 modified the law that requires an offset of SBP payments for surviving spouses who are also entitled to DIC.  The repeal will phase-in reduction of the offset beginning on 1 Feb 21.  In 2023, the SBP- DIC offset will be eliminated in total, so that surviving spouses eligible for both programs will receive both SBP and DIC in full.  In accordance with the NDAA Section 622, back payment refunds will not be authorized.

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 13 Mar 20 for comment (Exhibit D), and the applicant replied on 24 Mar 20.  In her response, the applicant agreed that she received the required briefing and the OSBR reports; however, she had little to no recollection of the meeting as she was trying to do what was best for her family for the next 15 years.  Further, the OSBR Report did not adequately help her understand the financial impact of her “Spouse and Child Coverage” election.  In addition, her financial counselor was able to help her see the financial impact of her election over time.  Had she known of the financial impact of the “Spouse and Child Coverage” election, she would not have chosen it.

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1. The application was not 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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

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 application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-04929 in Executive Session on 20 Aug 20:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Nov 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Advisory opinion, AFPC/DPFFF, dated 5 Mar 20.
Exhibit C: Attachment, On-Line Survivor Benefits Report
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Mar 20.
Exhibit E:	Applicant’s response, dated 24 Mar 20.

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.