RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01784
INDEX CODE: 137.04
COUNSEL: DONALD A. LABAR
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her late husband's records be corrected so that she may receive a
Reserve Component Survivor Benefit Plan (RCSBP) annuity based on full
retired pay rather than a reduced annuity.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Applicant states that the deceased military member believed he had
elected the maximum benefit option and that he was incapacitated when
the later open season enrollment occurred.
In support of her request, applicant submits a personal statement, the
former member’s Death Certificate, a DFAS Indebtedness package, and
supporting statements from family members, friends, their physician
and pastor.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The 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.
_________________________________________________________________
AIR STAFF EVALUATION:
HQ ARPC/DPS reviewed this application and recommended denial. The
member was notified of his eligibility to participate in the RCSBP
when he was first eligible in Aug 1984, and selected Option C,
Immediate Annuity for Spouse and Children, based on $300 of his
retired pay.
During the two RCSBP open enrollment seasons (1 Apr 92 to 31 Mar 93
and 1 Mar 99 to 28 Feb 00), members who elected less than full
coverage for their spouses were able to elect increased coverage. A
package was sent to the member at his mailing address. There is no
record of an increased election being made by the member at that time.
The applicant claims that her late husband did not know he was
electing less than the maximum amount available for survivors
benefits. However, the applicant signed the election acknowledging
the selection made in Aug 84 and has indicated in her testimony that
the member had received counseling.
Applicant’s statement claims her late husband was not mentally capable
of making any rational decisions during the 1999 – 2000 RCSBP open
enrollment election period. The first RCSBP open enrollment season
was mailed in Mar 92. We cannot say with any certainty if the
deceased member was either rational or irrational during the second
open enrollment. Statements from family and friends indicate the
deceased member was suffering from severe depression. Applicant’s
doctor had three counseling sessions with the member during 1998 and
concluded that he had severe depression. He states that the deceased
member displayed a “flat and blunted affect” during later
conversations. However, none of these instances were documented
because the member was not under his care, nor did he provide any time
period that the conversations might have taken place.
Testimony provided by the applicant appears to reflect incorrect
counseling was provided to the deceased member and the applicant in
Aug 1984. A detailed package, including an election form, sample
calculations, and instructions to contact HQ ARPC Entitlements branch
or a local military personnel flight to receive additional counseling,
was sent to assist the member in making an informed decision within
the 90 days provided by law.
Based on the selection made in Aug 84, the applicant is entitled to
approximately 55 percent of $300 prior to age 62, then approximately
35 percent thereafter.
A complete copy of the evaluation is attached at Exhibit B.
_________________________________________________________________
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.
Counsel’s complete statement, with attachments, is attached at Exhibit
D.
_________________________________________________________________
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. 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 their rationale as the
basis for our 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 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 AFBCMR Docket Number 02-
01784 in Executive Session on 21 January 2003, under the provisions of
AFI 36-2603:
Mr. David C. Van Gasbeck, Panel Chair
Ms. Patricia D. Vestal, Member
Mr. Roscoe Hinton Jr., Member
Exhibit A. DD Form 149, dated 20 May 02, w/atchs.
Exhibit B. Letter, ARPC/DPS, dated 5 Aug 02, w/atchs.
Exhibit C. Letter, AFBCMR, dated 9 Aug 02.
Exhibit D. Letter, Response from Applicant’s Counsel, dated
29 Aug 02, w/atchs.
DAVID C. VAN GASBECK
Panel Chairman
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