RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 00-02845
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Applicant is the ex-spouse of a former service member, who requests
corrective action that would entitle him to a Reserve Component
Survivor Benefit Plan (RCSBP) annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The destruction of their outgoing mail by neighborhood kids,
coinciding with the death of his wife’s brother in a motor vehicle
accident, has created an injustice in which her AF 123 became lost
without their ever knowing it.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The deceased member enlisted in the Regular Air Force on 25
September 1962 and was honorably discharged on 24 September 1966. On
25 September 1966, member reenlisted and was honorably discharged on
24 September 1970; serving a total of 8 years active duty. On 4
January 1978, member enlisted in the Air Force Reserve. Member was an
Air Force Reserve Chief Master Sergeant with 24 years of active and
reserve duty. On 4 July 1994, she was transferred to Retired Reserve.
A RCSBP election package was mailed to her home address and was
signed for by the applicant on 24 July 1990. The member died on 6
August 2000.
_________________________________________________________________
AIR FORCE EVALUATION:
The Director, ARPC/DPS reviewed this application and states that in
accordance with Title 10, United States Code, Section 1448 (a)(2)(B),
the member has 90 days to elect coverage. If an individual does not
return the RCSBP election form (non-response), the default is Option A
- “decline to make an election until age 60”. HQ ARPC has no record
of an election made by the member. Consequently, the member did not
have RCSBP coverage in effect at the time of her death and her spouse
is not entitled to receive an RCSBP annuity. Although the applicant
may have provided an accurate account of the circumstances in his
case, the requirement the member submit an RCSBP election within 90
days is established by law. They recommend relief be denied.
A complete copy of the evaluation is attached at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR STAFF EVALUATION:
The applicant reviewed the advisory opinion and states that the
injustice in this case centers simply on the fact that HQ ARPC never
volunteers the status of a military member’s selection of a RCSBP
option. The injustice also results from HQ ARPC’s withholding
information on the status of the applicant’s RCSBP election, thus
preventing the applicant from having an opportunity to correct the
error caused by the presumably stolen form.
Applicant's complete response, with attachment, is attached at Exhibit
E.
_________________________________________________________________
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 probable error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for the conclusion that the
applicant has not been the victim of an error or injustice.
Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in this
application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of probable material error or injustice;
that the application was denied without a personal appearance; and
that the application will only be reconsidered upon the submission of
newly discovered relevant evidence not considered with this
application.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 16 May 2001, under the provisions of AFI 36-2603:
Mr. David C. Van Gasbeck, Panel Chair
Ms. Patricia D. Vestal, Member
Mr. Mike Novel, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 13 Oct 00, w/atchs.
Exhibit B. Deceased Member’s's Master Personnel Records.
Exhibit C. Letter, HQ ARPC/DPS, dated 13 Dec 00.
Exhibit D. Letter, AFBCMR, dated 5 Jan 01.
Exhibit E. Applicant’s Response, dated 30 Jan 01.
DAVID C. VAN GASBECK
Panel Chair
_________________________________________________________________ APPLICANT'S REVIEW OF AIR STAFF EVALUATION: Applicant’s counsel provided a response to the Air Force evaluation, which included another letter from the applicant, her son-in-law and a friend of the deceased military member. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt...
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Applicant's complete submission, with attachments, is at Exhibit A. During the RCSBP open enrollment, March 1999 to 29 February 2000, records indicate that the member was notified but did not respond within the 90 days as required by law. We therefore agree with the recommendation of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden of having suffered either an error or an injustice.
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A complete copy of the evaluation is attached at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In reference to the advisory stating the former member failed to elect RCSBP when initially eligible in February 1997, counsel states that the opinion relies on the mailing of an election package to the former member, and the apparent lack of any response. After reviewing the evidence of record, we are not persuaded that...
There was no evidence that the service member made an election at that time. Therefore, based on the evidence provided they recommend denying the applicant’s request. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be...
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However, he has just discovered that his 1999 survivor benefit election was listed as “having not been received.” In support of his request, the applicant submits a personal statement, copies of medical records and additional documents associated with the issues cited in his contentions. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit...
However, he has just discovered that his 1999 survivor benefit election was listed as “having not been received.” In support of his request, the applicant submits a personal statement, copies of medical records and additional documents associated with the issues cited in his contentions. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit...