RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00703 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband's records be changed to reflect that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with election (Option C) based on full retired pay during an Open Enrollment Season. ________________________________________________________________ APPLICANT CONTENDS THAT: Her husband elected to enroll in the RCSBP with spouse only election based on full retired pay by signing, initialing, and submitting a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election, on 11 August 2006. In support of her appeal, the applicant provides copies of her late husband's Certificate of Death; a DD Form 2656-9, signed by her husband on 11 August 2006; a letter from the National Personnel Records Center, dated 6 February 2009; an AF Form 60, Military Sponsor Program Information, dated 29 March 1972; her husband's DD Form 214, Armed Forces of the United States Report of Transfer or Discharge and Resume; and correspondence related to a Congressional Inquiry to her Congressional representative. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The former servicemember was assigned to the Retired Reserve in the grade of technical sergeant and was awaiting retired pay at age 60 when he died on 1 Dec 08 at age 58. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits B and D. _______________________________________________________________ AIR FORCE EVALUATION: ARPC/DPP recommends denial noting, by law, the applicant was required to make an RCSBP election within 90 days of receipt of notification. He did not make an election when he was eligible in 1993. During an Open Season from 10 October 2005 through 30 September 2006, members who had elected less than full coverage or no coverage for their spouse/children were able to change their election to cover their families. The former member requested information on the Open Enrollment; it was mailed to his home address on 20 March 2006. He did not return an application to upgrade his current election to provide immediate RCSBP coverage for his spouse during that Open Enrollment season. Had he lived, he would have been afforded another opportunity to make an election under the SBP program upon reaching age 60 (4 Feb 10). ARPC/DPP indicates they cannot correct the former member’s records to reflect he elected to participate in the RCSBP because he failed to make an election within the 90-day period in accordance with the governing statute. A complete copy of the ARPC/DPP evaluation, with attachments, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 24 Apr 09 for review and response within 30 days. As of this date, no response has been received by this office (Exhibit C). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The Agency Legal Advisor has made no specific recommendation as the facts are not clear in this case and either granting or denying this application is a reasonable outcome. Although the applicant's former spouse appears to have completed the appropriate paperwork to enroll in the RCSBP during an open enrollment period, that paperwork was reportedly not received by ARPC. It is not clear as to whether the member changed his mind and did not enroll and did not tell the applicant, failed to mail it through oversight or neglect, or the paperwork was misplaced either in the mail or at ARPC. Although the application itself is silent on the issue of mailing, the applicant has stated in her letter to her Congressperson that she cannot prove her husband mailed this paperwork; thus, it appears the paperwork was not mailed and if there is proof of mailing, the applicant does not appear to be able to locate it. It is within the Board's discretion as to whether to extend the benefit of doubt to the applicant in these circumstances or rely upon the presumption of regularity that if the election paperwork had been mailed, it would have been received and processed. A complete copy of the Legal Advisor’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Counsel indicates the facts of this case are very clear. According to counsel, the former member completed and signed an RCSBP application to receive coverage. In his view, the preponderance of evidence supports the entitlements to SBP benefits. Counsel’s complete response is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After thoroughly reviewing the evidence of record and the documentation provided in support of this appeal, a majority of the Board is not persuaded to change the former servicemember’s records to reflect he elected coverage under the RCSBP. In this respect, the majority notes that when the member became retirement eligible, he chose to defer his election until age 60. While it appears he completed the paperwork to enroll in the RCSBP during an open enrollment period, we find no evidence showing the documentation was ever received by the Air Reserve Personnel Center (ARPC). We note the applicant’s assertion the member completed the paperwork electing spouse only coverage and submitted the documentation and, therefore, the facts of this case are clear and the evidence supports her entitlement to SBP benefits. However, the majority does not agree. The majority does not believe the evidence presented is sufficient to show that although the paperwork was completed, it was indeed mailed and received by ARPC. Given the presumption of regularity in the operation of governmental affairs, it must be believed that had the paperwork electing RCSBP coverage been mailed it would have been received and processed. In view of the above, and in the absence of sufficient evidence to the contrary, the majority concludes the applicant has failed to sustain her burden of establishing she has suffered either an error or an injustice. Accordingly, the majority finds no basis to recommend granting the relief sought in this application ________________________________________________________________ RECOMMENDATION OF THE BOARD: A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2009-00703 in Executive Session on 23 Feb 10, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board voted to deny the application. Ms. Mulligan voted to correct the records but did not desire to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Feb 09, w/atchs. Exhibit B. Letter, ARPC/DPP, dated 2 Apr 09, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 24 Apr 09. Exhibit D. Letter, Legal Advisor, dated 13 Jul 09. Exhibit E. Letter, AFBCMR, dated 15 Jul 09. Exhibit F. Letter, Counsel, dated 31 Aug 09. Panel Chair AFBCMR BC-2009-00703 MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR) SUBJECT: AFBCMR Application of I have carefully reviewed the evidence of record and the recommendation of the Board members. A majority found the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied. I concur with that finding and their conclusion that relief is not warranted. Accordingly, I accept their recommendation that the application be denied. Please advise the applicant accordingly. Director Air Force Review Boards Agency