RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00528
            INDEX CODE:  137.00

            COUNSEL:  MICHAEL J. DUNCAN

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

Applicant is the spouse of  a  former  service  member,  who  requests
corrective action that  would  entitle  her  to  a  Reserve  Component
Survivor Benefit Plan (RCSBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counselor for the applicant states that the record is in error to  the
extent that it reflects that the former service member  did  not  make
the proper elections or complete the proper  applications  to  entitle
his wife to survivor’s benefits or other benefits to which she may  be
entitled.  The applicant has not yet obtained  the  relevant  records,
despite  having  requested  the  same.   She  will   supplement   this
application on receipt of the relevant records.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 15 October 1996, the former member, who was  then  serving  in  the
grade of technical sergeant in the Air Force Reserve, was  transferred
to Retired Reserve under the  provisions  of  the  Reserve  Transition
Assistance Program (RTAP) (retirement with more than 15 and less  than
20  years  of  satisfactory  Federal  service  because   of   physical
disqualification).  He was credited with 17 years,  6  months  and  27
days of satisfactory Federal  service.   The  deceased  former  member
would have reached age  60  on  15  December  2006.   The  member  was
notified of his eligibility to participate in the RCSBP  when  he  was
first eligible on 18 February 1997.  The election package  was  mailed
certified mail and was signed for by the member.  There is  no  record
of any election having been made by the member.  The  member  died  on
14 February 1998, after a lengthy battle with cancer.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Director,  Directorate  of  Customer  Assistance,  HQ   ARPC/DPS,
reviewed the application and states that the member  was  notified  of
his eligibility to participate in the RCSBP when he was first eligible
on 18 February 1997.  The election package was mailed  certified  mail
and was signed for by the member.  There is no record of any  election
having been made by the member.  The member failed to  elect  coverage
when he was initially eligible.  Indications are that he was quite ill
at the time that he received his election package; however,  they  see
no error or injustice in the manner in which he was notified  of  this
program.  Therefore, they recommend denial of applicant’s request.

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.   However,  the  mere
absence of  the  required  form  from  the  former  member’s  file  is
insufficient to negate the evidence that the former  member  did  make
the  appropriate  election.   The  advisory  opinion   overlooks   the
extraordinary steps that the former member took  to  provide  for  his
family.

The former member knew he was dying and confronted with his  impending
death, the former member did everything possible to  provide  for  his
family financially.  While some eligible  participants  might  decline
SBP, perhaps to avoid the expense, it makes no sense that a dying  man
would decline an available death benefit.  From that alone, one  might
infer that the former  member  completed  and  returned  the  election
packet.  Given that such  completion  is  not  now  reflected  in  his
record, the error would appear to be that of the Air Force, and not an
error on the part of a dying man seeking to provide for his widow.

Even if the former member  did  not  properly  complete  the  election
packet, there is still an error or injustice in denying his family the
benefit that he had earned.  He states the advisory opinion  finds  no
error or injustice in the manner in which  he  was  notified  of  this
program.  However, the inquiry should not be so limited.

He states it would be an injustice to deny the benefit that the former
member earned, even if he did receive proper notice  and  even  if  he
failed to follow through on that notice.  The evidence indicates  that
the former member believed that he had made the appropriate election.

Given the former member’s efforts to provide  for  his  family  it  is
unlikely that his military record correctly reflects such  a  failure.
However, even if the fault is with the former member,  it  is  in  the
interest of justice to correct the record to reflect the  election  of
RCSBP.

Counsel's complete response 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.   After  reviewing  the
evidence of record, we are not  persuaded  that  the  former  member’s
records are either in error or that she has  been  the  victim  of  an
injustice.  The evidence before this Board reveals that on 18 February
1997, the Air Force notified the member, by  certified  mail,  of  his
eligibility to participate in the RCSBP.  The RCSBP  package  informed
him that he had 90 days in which to make an election if he desired  to
participate.  The Air Force never received an election within  the  90
days, as required by law.  In the absence of evidence to the contrary,
we find no error has been committed by the Air Force.  The only  other
basis upon which to recommend granting the relief requested is whether
or not the member has been the victim of an injustice.  The statements
submitted  on  behalf  of  the  former  member  have  been  thoroughly
reviewed.  However, we have  no  evidence  that  the  member’s  health
problems at that time prevented him from determining whether or not he
wanted to elect coverage under the RCSBP.  To the contrary, it appears
that  the  member  made  several  important  decisions  pertaining  to
benefits for his family after he was diagnosed with cancer.  While  we
are sympathetic to the applicant being denied RCSBP  benefits,  we  do
not believe that sufficient evidence has been  provided  showing  that
the member has been the victim of an injustice.  In view of the  above
findings and in the absence of  evidence  showing  that  the  member’s
physical or mental condition in 1997  prevented  him  from  making  an
informed decision concerning the RCSBP election, we find no basis upon
which to recommend favorable action on this application.


4.    The applicant's case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 25 September 2001, under the provisions of AFI 36-
2603:

                       Mr. David C. Van Gasbeck, Panel Chair
                       Ms. Patricia D. Vestal, Member
                       Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 14 Feb 01, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, HQ ARPC/DPS, dated 2 Jul 01.
      Exhibit D. Letter, AFBCMR, dated 6 Jul 01.
      Exhibit E. Counselor’s Letter, dated 3 Aug 01.




                             DAVID C. VAN GASBECK
                             Panel Chair