RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01322

XXXXXXXXXXX (DECEASED)	COUNSEL:  XXXXXXXXXXX

XXXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

Through counsel, the applicant contends an administrative error occurred at the time her husband completed the DD Form 1883, Survivor Benefit Plan Election Certificate, in preparation for his retirement.  Specifically, by law she should have been notified that her husband declined SBP coverage.  However, she was not notified and did not discover the error until after her husband’s death when she filed a claim for spousal SBP annuity.  The spouse notification requirement was intended to ensure spouses, upon the death of their sponsor, did not learn for the first time they were not covered by SBP.  

The applicant cites Barber v. United States (U.S.), Kelly v. U.S. and other similar decisions  referred to as the Barber cases, in which the U. S. Court of Federal Claims held that if a spouse was not notified of the member’s failure to make a spousal SBP election, the spouse was entitled to an SBP annuity upon the member’s death.  The Defense Finance and Accounting Service (DFAS) has acknowledged that no correspondence exists in her husband’s military record regarding spousal notification of the member’s declination of SBP coverage.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to documentation provided by the applicant and analysis of the facts, the following information is provided:

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

On 7 August 1956, according to a Certificate of Marriage, provided by the applicant, she married the decedent.

Prior to his 1 September 1977 retirement, according to DD Form 1883, dated 13 June 1977, the decedent elected not to participate in SBP.

On 19 February 2019, according to the Certified Death Record, provided by the applicant, the service member passed away.

On 11 April 2019, according to DD Form 2656-7, Verification for Survivor Annuity, the applicant submitted a claim for SBP annuity, and on 24 May 2019, DFAS denied the claim noting the decedent elected not to participate in SBP.  

On 12 June 2019, the applicant appealed to the Defense Office of Hearings and Appeals (DOHA).  In support of her appeal, she cited the Barber cases and provided a sworn affidavit affirming she was not notified of her husband’s decision not to participate in SBP.  On 13 October 2020, DOHA notified the applicant that they considered and disallowed her appeal based on the decedent’s declination to participate in SBP upon his retirement and his failure to enroll in SBP during an “Open Season.”  DOHA stated there was no legal basis to provide the applicant an annuity. 

On 4 November 2020, the applicant requested reconsideration of the decision claiming DOHA mentioned the Barber cases in its decision, but did not discuss their specific impact on the applicant’s claim.  On 27 January 2021, DOHA denied the request, stating they were unable to allow the claim for annuity due to statute and regulation, as well as the written record.  They informed the applicant that an avenue of relief was through the AFBCMR, if an error existed at the time the member made his SBP decision.

AIR FORCE EVALUATION

AFPC/DPFFF recommends granting the application.  Public Law (PL) 92-425, which established the SBP effective 21 September 1972, required that the spouse be informed when a married member declined or elected less than maximum spouse coverage.  The U.S. Court of Claims has consistently ruled that widows of members retiring after SBP’s implementation, who were not given notice of the sponsor’s election, are entitled to full SBP coverage--Barber v. U.S., 676 F.2d 651 (Cl. Ct. 1982); Dean v. U.S., 10 Cl. Ct. 563 (1986); and Kelly v. U.S., 826 F.2d 1049 (Fed Cir. 1987)--commonly called Barber cases.  There was no requirement for spouses to concur in SBP elections until passage of PL 99-145, which applies only to members retiring on or after 1 March 1986.

The applicant and the member were married on 7 August 1956.  DFAS records indicate the member declined SBP coverage prior to his 1 September 1977 retirement; however, there is no evidence that the required notice was or was not sent to the applicant.  The intent of the spouse notification requirement was to ensure spouses, upon the sponsor’s death, did not learn for the first time that they were not covered by SBP.  In this case, as in all Barber cases, the facts are essentially the same: there is no record the required notice was sent to the applicant and the applicant has provided a sworn statement that the notification was not received.  The member died on 19 February 2019.

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 9 September 2021 for comment (Exhibit D), but has received no response.

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 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 substantiates the applicant’s contentions.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to MEMBER be corrected to show that:

a. On 31 August 1977, he submitted a timely and effective election for spouse coverage under the Survivor Benefit Plan, based on full retired pay, naming APPLICANT as the eligible beneficiary.

b. On 19 February 2019, APPLICANT submitted a timely and effective claim for survivor benefit annuity.

c. Approval should be contingent upon recovery of Survivor Benefit Plan premiums.  If applicable, the monthly survivor benefit annuity will be applied to the premium debt until the total amount of premiums owed is recovered.

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-2021-01322 in Executive Session on 17 February 2022:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 March 2021.
Exhibit B:	Documentary Evidence, excluding relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DPFFF, dated 15 July 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Counsel, dated 9 September 2021.

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.