RECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS
IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01501 XXXXXXXXXXXXX (MEMBER)	COUNSEL: NONE
XXXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED: NO
APPLICANT’S REQUEST
1.	Her election of benefits under the Survivor Benefit Plan (SBP) be changed from Spouse and Child coverage to Child Only coverage.

2.	The election date be backdated to the deceased service member’s date of death and she receive back payments for the difference.
APPLICANT’S CONTENTIONS
She was pressured to make a quick decision regarding her SBP election without having a clear understanding of the program. Had she known that by choosing spouse only SBP coverage, her family would receive $1,000 less per month for 13 years, she would have chosen child only coverage. She was advised by a financial counselor that her family would be much better off with the extra income.
The applicant’s complete submission is at Exhibit A.
STATEMENT OF FACTS
The applicant is the surviving spouse of an Air Force technical sergeant (E-6).
According to the documentation provided by the applicant and analysis of the facts, the following information is provided:

On 26 June 2011, according to DD Form 1300, Report of Casualty, dated 8 July 2011, the service member died in a combat zone as a result of wounds, disease, or injury while serving on active duty.

On 30 June 2011, according to the Active Duty Death Statement of Desired SBP Election, the applicant acknowledged “I understand that children are contingent beneficiaries and only receive the annuity if I die or remarry prior to age 55. I also understand that Spouse SBP is offset dollar for dollar by Spouse Dependency and Indemnity Compensation (DIC) received from the Department of Veterans Affairs (DVA).”

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

AIR FORCE EVALUATION
AFPC/DPFFF recommends denying the application because there is no evidence of an Air Force error or injustice in this case and no basis in law to approve the request for an election change or back payments. The applicant received her Casualty Assistance briefing from the Air Force Base Casualty Assistance Representative. During the briefing, she was advised of the effects of two available SBP options: (1) Spouse and Children; and (2) Child Only – Spouse Excluded. By law, when the spouse and child SBP option is elected, and the spouse is later awarded DIC from the Department of Veterans Affairs (DVA), the Defense Finance and Accounting Service (DFAS) reduces the spouse’s SBP annuity dollar for dollar by the amount of the DIC award. SBP Child Only annuity is not offset by DIC.

On 30 June 2011, the applicant selected Spouse and Children SBP coverage. She signed the Statement of Desired SBP Election form acknowledging her understanding of the dollar for dollar DIC offset and that the election was irrevocable. 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 entitled to DIC. The repeal will phase-in reduction of the offset beginning on 1 February 2021. 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 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 30 November 2020 for comment (Exhibit D), but has received no response.
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). While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence. 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.
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-2020-01501 in Executive Session on 25 February 2021:

, 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 23 April 2020.
Exhibit B: Documentary evidence, including relevant excerpts from official records. Exhibit C: Advisory opinion, AFPC/DPFFF, w/atch, dated 16 November 2020.
Exhibit D: Notification of advisory, SAF/MRBC to applicant, dated 30 November 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.