RECORD OF PROCEEDINGS

IN THE MATTER OF:	      DOCKET NUMBER:  BC-2021-01297

XXXXXXXXXXXXXXX (DECeased member)    COUNSEL:  NONE

XXXXXXXXXXXXXXX (APPLICANT)	       HEARING REQUESTED:  YES

APPLICANT’S REQUEST

His spouse’s (decedent) record be changed to show he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

His spouse  was diagnosed with Post-Traumatic Stress Disorder (PTSD) before he retired from the Air Force in 1998. Following retirement, his spouse had a hard time coping with and understanding what he was required to do when entering civilian life.  Additionally, he was never counseled on changing his benefits if he were to marry.   When he and his spouse married in 2014, they went to the local Air Force base and met with staff to complete paperwork, which was then scanned into the Defense Enrollment Eligibility System (DEERS).  They were then told to use myPay to add him as the  beneficiary and they would be set.  Both assumed he would receive the SBP annuity.  As time progressed, his spouse’s PTSD worsened and his only focus was on his spouse’s health.  On 4 Nov 19, his spouse beat him and then took his own life.  He was in a coma for almost two months and is now permanently blind in one eye, has a traumatic brain injury, PTSD, and is disabled and depressed.  He has cognitive difficulties and is unable to work.  It is not only essential that he receive SBP so he can pay his bills, but because his spouse proudly served, protected the nation, and made numerous sacrifices.  His spouse’s true passion was the love for this country.  Unfortunately, that love ended up diminishing his health and eventually took his life.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 8 Jan 98, according to DD Form 2656, Data for Payment of Retired Personnel, the decedent elected Option G, Elect Not to Participate in SBP,  and had no eligible dependents under the plan.

On 31 Mar 98, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant, was discharged for the purpose of retirement.

On 1 Apr 98, according to Special Order No. XXXXX, dated 25 Apr 97, the decedent retired from the Regular Air Force.  

On 28 Jul 14, according to a Certificate of Marriage, provided by the applicant, he married the decedent.

On 4 Nov 19, according to a Certificate of Death, provided by the applicant, the former member passed away.

On 26 Aug 21, the Board sent the applicant the following standard form, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP Marital Status Affidavit (Deceased Retiree)

On 31 Aug 21, the applicant returned the completed affidavit. 

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

AIR FORCE EVALUATION

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.  Survivors of military retirees may continue to receive a portion of the sponsor’s retired pay only if the member was a participant in the SBP.  The law contains no automatic enrollment provision for a spouse acquired after retirement unless spouse coverage had been previously elected, then suspended due to the death or divorce of the previous spouse. 
 
Title 10, Section 1448 (a)(5) allows a member, who is unmarried at retirement, to elect coverage for the first spouse acquired after retiring.  However, the election must be submitted before the first anniversary of that marriage.  If a member fails to make an election before the first anniversary, SBP coverage for that person or another person of that category may be elected only if Congress authorizes an open enrollment period.  The most recent open season enrollment occurred from 26 Jun 13 through 25 Jun 14, prior to the applicant’s and decedent’s marriage.

The decedent retired on 1 Apr 98, and the DoD Person Search (formerly DEERS) reflects he was not married and had no dependent children.  The decedent married the applicant, post-retirement, on 28 Jul 14, and had the option to elect SBP spouse coverage within one-year of that marriage.  There is no election on file, submitted by the decedent, requesting coverage for the applicant; subsequently, no SBP premiums were paid for coverage.  Therefore, the applicant is not eligible for an SBP annuity.

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 3 Aug 22, for comment (Exhibit D), and the applicant replied on 30 Aug 22.  In his response, the applicant contended he is confused and does not understand the statements in the recommendation letter.  He would like a hearing before the Board but due to his disability, he is unable to travel. However, he can appear via computer as he does with his doctors.  He and his spouse never knew about the SBP benefit.  His spouse  did not go to the base the week before his retirement because he was too upset to say goodbye.  He has proof the signature on the form that was signed on 1 Apr 98 was not signed by his spouse. Additionally, his retirement date listed as 31 Mar 98. 

He reiterates his previous contentions that he and his spouse were  not counseled on SBP.  They completed all required paperwork, followed instructions, and were told there was nothing else they were required to do.  Therefore, he assumed he was eligible for SBP coverage.  His spouse was adamant that he be taken care of.  After his spouse’s death, he spoke to the Air Force via phone before the COVID shutdown.  The person he spoke with advised him he could pay the premiums for the last six years they were married, and once his spouse passed away, he would not pay premiums, and he agreed to that.  However, he was passed around from department to department, until finally he was told to submit an application to the Board. 

In support of his request, the applicant provides a living trust, living will, power of attorney, and last will and testament.

The applicant’s complete response is at Exhibit E.

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 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 did not make an SBP election for spouse coverage within the one-year period of their marriage, as required by law.  Therefore, the Board 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 evidence did not demonstrate material error or injustice, 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-2021-01297 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 13 Apr 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DPFFF, dated 17 Jul 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 Aug 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 30 Aug 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.