RECORD OF PROCEEDINGS

IN THE MATTER OF:	     DOCKET NUMBER:  BC-2021-00127

XXXXXXXXXXXX (DECeased Member)	     COUNSEL:  NONE

XXXXXXXXXXXX (APPLICANT) 	    HEARING REQUESTED:  YES

APPLICANT’S REQUEST

1.  Correct his father’s record to show he died on 4 Mar 94. (Correction not required)

2.  He made a timely election for spouse coverage under the Retired Serviceman’s Family Protection Plan (RSFPP)/Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

He is acting as legal care provider and Veterans Administration appointed Federal Fiduciary for his mother, who is the widow of the deceased service member.  He is the only child and has 100 percent responsibility for the care of his 84-year-old mother who resides in an assisted living facility.  His mother has limited means and due to a stroke and heart attack, she has not been capable of managing her own financial affairs since 2014.  She relies on him for her important decision making and financial affairs.

The Defense Finance and Accounting Service (DFAS) does not have a record of his father’s death, so he would like his records corrected to reflect his passing.  According to DFAS, his father’s  records must reflect his death so he can apply for retroactive widow’s pension benefits for his mother.  The death certificate he provided was not sufficient proof for DFAS; they require his death to be documented in his official military record.

His mother should have received his father’s pension benefits that she is entitled to from his 20 years, 5 months, and 23 days of active service.  DFAS should be provided the opportunity to remedy this and provide approximately 26 years of retroactive pension benefits to his mother. When he first contacted DFAS, he was directed to contact the Air Force Personnel Center (AFPC) to obtain his father’s military records.  AFPC directed him to the National Archives and Records Administration.  He received his father’s records and is now requesting the Air Force Board for Correction of Military Records correct the record to show his passing.  He can then begin the process of working with DFAS to apply, facilitate, and begin the retroactive pension benefits to the decedent’s widow.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 28 Feb 67, the deceased service member was furnished an honorable discharge, with Type of Transfer or Discharge:  Retirement, and credited with 20 years, 5 months, 23 days active service.

On 1 Mar 67, according to Special Order Number XXXXX, dated 14 Dec 66, the deceased service member retired from the Regular Air Force.  

On 4 Mar 94, according to a Certificate of Death, provided by the applicant, the service member passed away.

On 25 Mar 94, According to Standard Form 1174, Claim for Unpaid Compensation of Deceased Member of the Uniformed Services, the decedent’s widow applied for unpaid compensation upon his death.

On 10 Jun 20, according to DFAS Letter to the decedent’s widow, DFAS records did not reflect the decedent was on the military retired pay roles.

According to a Defense Enrollment Eligibility Reporting System (DEERS) snapshot, the decedent was retired on 1 Mar 67, died on 4 Mar 94, and his widow’s status was verified on 21 Apr 21.

According to Defense Retiree and Annuitant Pay System (DRAS) inquiry, no annuity record was found for the decedent.

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION

AFPC/DP3SA provides an advisory for information only.  The Military Personnel Data System (MilPDS) reflects the service member is deceased.  MilPDS also reflects the decedent retired from the regular component of the Air Force, under 10 U.S.C. § 08914 (now § 09314), effective 1 Mar 67.  The applicant provided a copy of the decedent’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, which next of kin routinely present to obtain benefits.  A representative from the DEERS office confirmed the information reported showing a retirement from the regular component, consistent with the DD Form 214 and MilPDS.

The complete advisory opinion is at Exhibit C.

AFPC/DPFFF recommends denying the application.  There is no evidence of an error or injustice on the part of the Air Force, or any basis in the law that allows payment of an SBP annuity.  SBP was established on 21 Sep 72, under Public Law 92-425, which repealed the former survivor benefits option known as the Retired Serviceman’s Family Protection Plan, under Public Law 87-381, dated 4 Oct 61.  The decedent retired on 1 Mar 67, prior to the establishment of SBP.  The decedent could have elected RSFPP coverage before the end of his 18th year of active duty service; however, DFAS has no record the decedent elected this coverage or made any RSFPP associated premium payments.  Once SBP was established, there was an open enrollment period for all retirees from 21 Sep 72 through 20 Sep 73 [sic].  Again, there is no evidence the decedent elected coverage or paid any premium-associated costs to receive an annuity.

DEERS records show the decedent was married with dependent children at the time of his retirement.  It also records the decedent’s death on 4 Mar 94.  DFAS records also reflect submission of Standard Form 1174, signed 25 Mar 94, confirming the decedent’s death and to receive any arrears of pay owed to the decedent.  Those funds were paid and the decedent’s retired pay closed out.  There is no record of any other financial entitlements.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 27 Jun 22, for comment (Exhibit E), 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 decedent’s official military records reflect both his retired status and the date of his death; however, there is no evidence of any election of an annuity under either the RSFPP or SBP during his service or during any open season prior to his death.  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.  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.

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-2021-00127 in Executive Session on 18 Nov 22:

, 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 15 Jan 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DP3SA, dated 5 May 22.
Exhibit D:	Advisory, AFPC/DPFFF, dated 24 Jun 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 Jun 22.

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.