RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01714
            INDEX CODE:  137.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to show he elected to participate in the Reserve
Component Survivor Benefit Plan (RCSBP) with an annuity based  on  the
full amount of retired pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He retired in 1996 after 25 years of service in the ---  Air  National
Guard.  He was not approached  by  anyone  concerning  his  retirement
benefits.  Unfortunately, he has been diagnosed with cancer and now he
is unsure if he will ever reach the age of 60 to draw retired pay.  He
called to check on his retirement benefits recently due to his illness
and it was then he found out that he was supposed to have filled out a
retirement option form prior to retirement.  The entitlement office in
Denver stated that a letter was sent in 1999 to his house.  He  states
this letter was never received at his home.  He is  wondering  why  no
one has checked his file to follow up on why  his  retirement  options
were not completed and placed in his file at either of these times.

In support of his application, he provided a personal statement.   The
applicant's complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member,  while  serving  in  the  grade  of  senior  master
sergeant in the Air National Guard, was relieved from  his  assignment
and transferred  to  the  Air  Force  Reserve,  Nonaffiliated  Reserve
Section on 3 February 1996.  Information extracted from the  Personnel
Data System indicates he had accrued 20 years of satisfactory  Federal
service as of 2 February 1991.  The former member’s spouse provided  a
copy of a Certificate of Death showing the former member  died  on  15
July 2002.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPS states the former member was notified of his  eligibility  to
participate in the RCSBP when he was first eligible in  October  1991.
A detailed package was sent to his mailing address and signed  for  by
the former member on 6 July 1991.   DPS  has  no  record  he  made  an
election.

DPS stated that their records  indicate  the  applicant  was  notified
concerning the RCSBP open enrollment seasons for the  periods  1 April
1992 to 31 March 1993 and 1 March 1999 to 28 February 2000.  They have
no record the member made an election  at  either  time.   While  they
sympathize with the entire family,  the  former  member  had  numerous
opportunities to make an election.  The  evidence  provided  does  not
indicate any injustice has occurred.  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:

The spouse of the former member states in October of 1991, the  former
member signed for the package explaining retirement benefits  that  he
was to review and elect the option of coverage to  be  provided.   The
Air Force records do not indicate that the former  member  replied  to
the information provided.   During  this  period,  Option  A  was  the
default option for failure to return  ARPC  Form  123-1.   In  January
2001, the policy changed to default to Option C for failure to  return
ARPC Form 123.  The January 2001 policy does not  provide  limitations
for the retirees to whom this policy applies.  As  there  is  no  ARPC
Form on file for the former member, then Option  C  should  apply,  as
this was the policy in effect at the time of his death.  She also read
in the letter of 1 November 2002, that the former member was  provided
two other notifications to elect a benefit option for retirement.   As
he was required to sign for the benefit options package in  1991,  why
was a signature not on file for these notifications as well?  She  has
searched through their family records  and  has  no  record  of  these
notifications being received.

She knows that over the years it is possible that many servicemen  may
not  have  returned  their  forms  or  may  have  provided  incomplete
information or information in the improper format.  She truly believes
that the options for retirement were changed in  2001  for  this  very
reason.  She asks to  please  reconsider  the  recommendation  to  the
Review Board to allow her family benefits  from  the  former  member’s
retirement.  His service of  25  and  one-half  years  should  not  be
disregarded after his death, and their family  depended  on  receiving
his retirement to care for them as she gets older.

In a separate submission, the spouse of the former member  provided  a
letter stating that an ARPC Form 123 packet was  sent  to  the  former
member in May 2002.  The packet had a 90-day suspense on  it  and  was
returned within the time allowed.

Copies of the spouse’s responses, with attachments,  are  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 error or injustice.  In his initial  submission,  the
former member stated he never received a letter concerning  the  RCSBP
that was mailed to his house in  1999.   The  first  time  the  former
member was eligible to make an election under the program was in 1991,
at the time he was notified of his eligibility to receive retired  pay
at age 60.  According to the ARPC/DPS, the former  member  signed  for
the notification package but made  no  election  at  that  time.   DPS
further indicates that mailings were sent to the former member  during
the two open enrollment seasons in 1992 and 1999 and that he  made  no
election during either period.  As to the applicant’s observation that
ARPC failed to produce signed receipts  for  these  mailings,  we  are
aware  that  there  was  no  requirement  for  certified  mailings  of
notifications for open enrollment seasons.  However, we do  note  that
the former member’s mailing address from the time he received the 1991
mailing until his demise remained the same.   The  applicant  believes
the 2001 change to the law pertaining  to  SBP  coverage  for  Reserve
members requiring automatic enrollment under  the  immediate  coverage
provision if the member  made  no  election  when  initially  notified
should apply in her case.   However,  contrary  to  her  belief,  this
change was of no benefit to the applicant since the  law  specifically
applied only to those members who were notified they  had  accrued  20
satisfactory years after 1 January 2001.  By law, the next opportunity
for former member to enroll in the Survivor Benefit  Plan  would  have
been at the time he reached age  60,  which  would  have  occurred  on
24 October 2004.  Therefore, the fact that he was provided an election
certificate for completion in 2002 was an error  and  to  accept  that
form as a valid election would have been  contrary  to  the  governing
statute.  Accordingly, based on  the  above  and  in  the  absence  of
evidence that refutes the information provided by the  Air  Force,  we
have no basis on which to favorably consider 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  this  application  in
Executive Session on 30 September 2003 under the provisions of AFI 36-
2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Mr. Roscoe Hinton, Member
                 Mr. Mike Novel, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 15 May 2002, with attachment.
      Exhibit B.  Former Member’s Military Personnel Records.
      Exhibit C.  Letter, 16 October 2002, with attachments.
      Exhibit D.  Letter, SAF/MRBR, dated 1 November 2002.
      Exhibit E.  Letters from the applicant, dated 7 November and
                       19 November 2002, with attachments.



                                   DAVID C. VAN GASBECK
                                   Panel Chair