RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02049
            INDEX CODE:  137.01, 137.04
            COUNSEL:  KAREN NORRIS

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His  Reserve  Component  Survivor  Benefit  Plan  (RCSBP)  package  be
corrected to reflect he selected  Option  C  (Immediate  coverage  for
spouse).

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APPLICANT CONTENDS THAT:

The record is in error and unjust because the  default  provisions  of
the law resulted in the election of Option A (Deferred election  until
age 60) and thereby divesting his spouse of potential benefits  if  he
dies before reaching age 60.

In  support  of  his  request,  the  applicant  provided  a   personal
declaration and a brief from his attorney.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant currently serves in the Air Force Reserves in the  grade
of Colonel.  He was eligibile to participate in the RCSBP  on  1  June
1999 when he was notified of completing 20 years satisfactory service.
 The election package was sent by certified mail to  his  address  and
signed for by his spouse on 5 October 1999.  There is no  evidence  he
made an election at that time.  At the end of his 90-day suspense  the
applicant was automatically enrolled in Option A,  “Deferred  election
until age 60.”

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed applicant’s request and recommends  denial.   The
RCSBP package sent to the applicant had instructions  to  contact  the
Entitlements Branch if he had any questions.  The  applicant  did  not
respond to the  election  package,  which  resulted  in  his  election
default to Option A.  The evidence  provided  does  not  indicate  any
injustice has occurred.

The DPS evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s attorney states that the core issue is whether or  not
the applicant received the  entitlements  package  setting  forth  the
options available to him under the RCSBP.  He states that the evidence
demonstrates that he did not receive the package and  therefore  never
made an election of benefits.  Because the  applicant  never  received
the package, any default provision of the RCSBP “deeming” his election
to be Option A (no survivor benefits paid if he dies before the age of
60) is both erroneous and unjust and divests his spouse to  her  right
to survivor benefits.

He also declares that the advisory opinion states that the applicant’s
wife signed for the receipt of the package on 10 May 1999.   The  date
is clearly in error because it would be a  factual  impossibility  for
the election package to be received and signed for prior to  when  the
package was sent.

This error was evidently the result of the advisory opinion writer mis-
reading the return receipt  card,  which  clearly  reflects  that  the
package was signed for on 10-5-99, which is 5 October 1999.

The issue in this case, which the advisory opinion writer neglects  to
even address, is whether the  applicant  ever  received  the  election
package.  He believes this is  the  critical  error  in  the  advisory
opinion analysis.  The only evidence in the record  in  this  case  is
that the applicant never received the election package.  Obviously, if
the applicant never received the election package, he was never  in  a
position to make an  election  of  benefits.   The  applicant  is  not
claiming that he was not properly counseled.  He has stated under oath
that he never received the election package.  Absent  receipt  of  the
election package, there was no counseling or  any  picture,  clear  or
otherwise, of the benefits that he and  his  survivors  were  eligible
for.

In the applicant’s brief, both the prior and current  version  of  the
RCSBP are discussed, as well as the Survivor Benefit Plan that applies
to military members.  The variations on plan eligibility  and  default
provisions among these plans are discussed in order to demonstrate the
inherent injustice in applying the default  provisions  of  the  RCSBP
under the facts of this case.  The point is not that the applicant was
entitled to the benefits or counseling under  other  versions  of  the
SBP, but that the courts and regulators (including the Air Force)  and
ultimately Congress, have all recognized  the  inherent  injustice  in
divesting a  spouse  of  survivor  benefits  without  full  knowledge,
consent and counseling.  In this case,  because  the  applicant  never
received the entitlements package, neither  he  nor  his  spouse  ever
received any counseling about the available benefit options.

His complete submission, with attachments, is at Exhibit D.

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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 an error or injustice.  In this respect, we note that
the Air Force, in accordance with  established  procedures,  sent  the
applicant an election package by certified mail to his address,  which
was signed for by the applicant’s wife on 5 October 1999.  While it is
unfortunate that the applicant failed to make an election prior to the
90-day suspense, we find no error on the part  of  the  Air  Force  in
regards to the notification, or the applicant’s election by default to
Option A.  We do not believe that based on the existing  circumstances
that the applicant has been the victim of an error  or  an  injustice.
It should be noted that applicant remains eligible to make an election
upon reaching age 60.  Therefore, in the absence of  evidence  to  the
contrary, 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.

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THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of an material error or an  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 Docket  Number  BC-2003-
02049 in Executive Session on 27 January 2004, under the provisions of
AFI 36-2603:

                 Mr. Joseph A. Roj, Panel Chair
                 Ms. Leslie E. Abbott, Member
                 Mr. Mike Novel, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 29 May 03, w/atchs.
      Exhibit B. Letter, HQ ARPC/DPS, dated 1 Jul 03, w/atchs.
      Exhibit C. Letter, SAF/MRBC, dated 21 Oct 03/atchs.
      Exhibit D. Letter, Applicant’s Attorney, undated, w/atchs.





      JOSEPH A. ROJ

      Panel Chair