RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01873

XXXXXXXXXXXXXXX	COUNSEL: NONE 

  	HEARING REQUESTED: NO
 
APPLICANT’S REQUEST

His spouse be enrolled in the survivor benefit plan (SBP).  

APPLICANT’S CONTENTIONS

He would like his spouse to receive the benefit upon his death.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (E-6).

On 26 Mar 80, the parties were married.  

On 2 Apr 93, the applicant declined SBP.  The applicant’s spouse signed AF Form 1267,Survivor Benefit Plan Notification and Concurrence, concurring with the declination of SBP on 2 Apr 93.

On 1 Sep 93, the applicant retired from active duty.

He provides a letter from the Defense Finance and Accounting Service (DFAS) dated 13 Jan 14, informing him he was unable to enroll his spouse in the SBP since he was married at the time of his retirement and elected to exclude his spouse.  

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

AIR FORCE EVALUATION

AFPC/DPFFF recommends denial.  Members are required to make an SBP decision prior to retiring.  Public Law 99-145, dated 8 Nov 85, established the requirement that a spouse’s written concurrence be obtained for members who retire on or after 1 Mar 86 and elects less than full spouse coverage.  DFAS records reflect the applicant declined SBP coverage prior to his 1 Sep 93 retirement and his spouse signed a concurrence statement agreeing with the applicant’s decision to decline coverage.  There is also no evidence the applicant submitted an election to cover his spouse during the 1999-2000 or 2005-2006 open enrollment periods.  Based on the evidence presented, approval would provide the applicant with an additional opportunity to elect SBP coverage not afforded to other similarly situated retirees and is not justified.  

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 18 Dec 20 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 evidence shows the applicant did not elect SBP coverage on three separate occasions.  In view of this, the Board does not find it in the interest of justice to provide the applicant an additional opportunity not afforded to similarly situated retirees.  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.

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-2020-01873 in Executive Session on 28 Jan 21:

 , 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, 11 May 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFF, dated 16 Dec 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Dec 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.