ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  BC-1999-00012
                 INDEX CODE:  137.04

            COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s  request  for  reconsideration,  she  requests  her  late
husband's records be corrected to reflect that  he  elected  full  immediate
coverage under the Reserve Component Survivor Benefit Plan (RCSBP).

_________________________________________________________________

STATEMENT OF FACTS:

On 25 May 1999,  the  Board  considered  an  application  submitted  by  the
applicant requesting her late husband’s records be corrected to  reflect  he
elected  full  immediate  coverage  under  the  Reserve  Component  Survivor
Benefit Plan (RCSBP), even though the election was turned  in  late.   After
considering the evidence provided, the Board determined it was  insufficient
to find error or injustice and denied the application.   For  an  accounting
of the facts and circumstances surrounding the applicant’s request, and  the
rationale  of  the  earlier  decision  by  the  Board,  see  the  Record  of
Proceedings at Exhibit E.

The applicant now requests  her  late  husband’s  records  be  corrected  to
reflect he elected full  immediate  coverage  under  the  Reserve  Component
Survivor Benefit Plan (RCSBP), in light of the  2000  amendment  to  10  USC
1448.  In support of her appeal, she provided a personal statement,  a  copy
of the response to the initial RCSBP package received from  HQ  ARPC,  dated
20 Jul 1993, and a copy of the decedent’s death certificate.

The applicant’s complete submission is at Exhibit F.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s  request,  HQ  USAF/JAG,  reviewed  the  applicant’s
request for reconsideration based on the 2000  amendment  to  10  USC  1448.
Before 1 Jan 2001, the Air Force deemed a  member  who  failed  to  make  an
election during the RCSBP 90-day period as having elected to defer  coverage
until age 60.  In 2000, 10 USC  1448  was  amended  to  entitle  a  deceased
service member’s spouse to receive an annuity payment under the RCSBP  where
the service member submitted his  election  decision  past  the  statutorily
imposed 90-day deadline.  This change creates a default process whereby  the
member is considered to have elected to participate in  the  program  unless
the member affirmatively chooses to  opt-out  (with  the  spouse’s  consent)
within the 90-day period.  In other words, a member’s failure to return  the
election form within the 90 days simply means  that  the  member  agrees  to
take part in the program.  It no longer acts as a bar to membership.

Unfortunately for the applicant, the amendment applies only to  members  who
are notified after 1 Jan  2001,  that  they  have  completed  the  years  of
service required for eligibility for  reserve-component  retired  pay.   The
law does not provide any mechanism  to  retroactively  place  those  service
members in the RCSBP who, prior to the 2000 amendments, did not meet the 90-
day election deadline.  Accordingly, they  found  no  error  supporting  the
applicant’s petition.

A complete copy of the evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Having been  provided  the  advisory  opinion,  the  applicant  submitted  a
personal statement for the Board’s review in which she gave a brief  summary
of her late husband’s service history and  experiences  during  his  career.
She explained the circumstances  surrounding  the  RCSBP  package  and  that
unfortunately it was not returned within the 90-day period.

She opined throughout this process that the law was  unjust  and  failed  to
safeguard families in these situations.  She expressed her concerns  to  her
members of congress and was informed that the law  was  being  reviewed  for
submission for legislative change.  She has contended  all  along  that  the
previous law was flawed and did not provide  families  with  the  protection
intended when it was written.  She again asks the Board  to  reconsider  her
request because the original denial was based on an unfair  and  unjust  law
that has since been changed to reflect the needs of military families.

A complete copy of the applicant’s review is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in  support
of the appeal, a majority of the Board remains unpersuaded that  a  revision
of the earlier determination in this case is warranted.  We  have  carefully
reviewed the applicant’s submission in judging the merits of this case.   In
her most recent submission, the applicant asserts that  prior  to  the  2000
amendment the previous law was flawed and unjust, and  it  did  not  provide
families with the protection intended when it was  written.   Thus  the  law
was amended to correct this situation.  A majority of the Board  finds  that
based on the evidence of record and the opinion provided by  the  Office  of
the Judge Advocate General, the law, unfortunately for the  applicant,  only
applies to members who are notified after 1 Jan 2001, and does  not  provide
any mechanism to retroactively  provide  coverage  to  those  members,  who,
prior to the 2000 amendment, did not  meet  the  90-day  election  deadline.
Based on the foregoing, and in the absence of evidence to  the  contrary,  a
majority of the Board finds no basis on  which  to  favorably  consider  the
requested relief.
_________________________________________________________________

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-1999-
00012 in Executive Session on 22 September 2003,  under  the  provisions  of
AFI 36-2603:

      Mr. Joseph A. Roj, Panel Chair
      Mr. Roscoe Hinton Jr., Member
      Mr. Mike Novel, Member

By a majority vote, the Board recommended denial of  the  application.   Mr.
Hinton voted to grant the applicant’s request and did not want to  submit  a
minority report.  The following documentary evidence was considered:

      Exhibit E.  Record of Proceedings, dated 28 May 1999,
                with Exhibits.
      Exhibit F.  Applicant’s DD Form 149, dated 10 Mar 2003, with
                attachments.
    Exhibit G.  Letter, AF/JAG, dated 27 May 2003.
    Exhibit H.  Letter, AFBCMR, dated 6 Jun 2003, with
                attachment.
    Exhibit I.  Letter, Applicant, dated 5 Aug 2003, with
                attachments.





                                   JOSEPH A. ROJ
                                   Panel Chair




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                 CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant had
not provided substantial 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.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency