RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00178
            INDEX NUMBER:  137.00

            COUNSEL:  DANIEL A. POST

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased brother’s records be corrected to show he  elected  to
participate in the Reserve Component Survivor Benefit Plan  (RCSBP)
with  an  election  of  Insurable  Interest,  naming  her  as   the
beneficiary.
___________________________________________________________________

APPLICANT CONTENDS THAT:

The DD Form 2656,  Data  for  Payment  of  Retired  Personnel,  her
brother signed on 26 May 02, was incomplete due to his advanced age
and poor health and the fact he received no counseling from the Air
Force or any other branch of the military service.

He clearly wanted her to receive an annuity under the RCSBP.

In support of her request, applicant provided a copy  of  her  late
brother’s unwitnessed DD Form 2656, dated 26 May 02, and a copy  of
his Certificate of Death.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 28 Sep 79, the former member executed  DD  Form  1883,  Survivor
Benefit Plan  Election  Certificate,  electing  no  coverage  under
Option A (Defer).  He indicated he was not married at that time and
did not have dependent children.

The former member was assigned to the Retired Reserve  Section  and
placed on the USAF Reserve Retired List effective 9 Nov 85, and was
eligible for retired pay at age 60 (26 Oct 89).

The member died on 12 Dec 02.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  ARPC/DPS  reviewed  this  application  and  recommends  denial,
stating, in part, that on 28 Sep 79, the  member  was  eligible  to
participate in the RCSBP; he made an election of Option A  (Defer).
The applicant states her brother was not  counseled  on  his  RCSBP
benefits; however, the initial RCSBP package  sent  to  the  former
member clearly explained the program.

The Defense Finance and Accounting  Services  in  Cleveland,  Ohio,
confirmed that, on  26  October  1989,  the  former  member’s  60th
birthday, he did not make an election.  Due to the fact he was  not
married at the time of his eligibility he had no coverage.   Member
was drawing retired pay for over ten years prior to his death.

A complete copy of the evaluation, with attachments, is attached at
Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel  reviewed  the  Air  Force  evaluation  and
states, in part, there is no option under Section 9c that could  be
taken  to  mean  “Irrevocably  Waived,”  nor  does  any  reasonable
definition of the word “Defer” preclude subsequent  action.   Since
the member’s retirement date was more than ten years after the date
the certificate was signed, it seems  harsh  to  penalize  him  for
electing on 28 Sep 79 to “Defer” making an SBP election until  some
unspecified future date, especially when the option to “Defer”  was
offered on the SBP Election Certificate  and  his  retirement  date
was, at the time, in the distant future.

Counsel also states he feels his client’s brother was not  properly
counseled  regarding  his  RCSBP  benefits,  and  that  appropriate
counseling  must  occur  when  it  comes   to   matters   involving
substantial benefits to military personnel.   It  is  difficult  to
imagine why, as a  commissioned  officer,  the  member  would  have
deliberately and irrevocably elected on 28 Sep 79, or even  26  Oct
89, to forfeit his right to arrange survivor benefits.

Applicant’s counsel also provided copies of the member’s ARPC  Form
0-69 (Application for Retired Pay), and DD Form  2656,  which  were
signed by the member on 26 May 02.

Counsel’s complete submission, with attachments, is at Exhibit D.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the  existence  of  error  or  injustice.   The  former
service member had two opportunities to establish survivor coverage
for  the  applicant  under  Air  Force-sponsored  programs.   After
completing the required years of federal service to be eligible for
retired  pay  at  age  60,  the  former  member  was  eligible   to
participate in the Reserve Component Survivor Benefit Plan (RCSBP).
 On 28 September 1979, he elected not to participate in the program
under Option A (Defer).  An explanation of Option A  was  contained
on the reserve side of  his  election  form.   Specifically,  under
Option A, the member declined to make an election at that time, but
remained eligible to make an  election  for  coverage  at  age  60.
There is no evidence he submitted an election to establish survivor
coverage for the applicant  when  he  reached  age  60  and  became
entitled  to  Reserve  retired  pay.   Furthermore,  this   Board’s
authority is limited to what is allowed by the  existing  law.   In
this respect, the laws governing  the  RCSBP  do  not  provide  for
retirees to  arbitrarily  enroll  in  the  program,  except  during
congressionally authorized open enrollment periods.  Therefore, the
former member was not eligible to make an election on 26 May  2002.
Based on the foregoing, and in  the  absence  of  evidence  to  the
contrary, we find no basis upon which to recommend favorable action
on the applicant’s request.

___________________________________________________________________

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 Docket  Number    BC-
2004-00178  in  Executive  Session  on  20  July  2004,  under  the
provisions of AFI 36-2603:

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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Jan 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPS, dated 19 Feb 04, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 20 Feb 04.
    Exhibit D.  Letter, Counsel, dated 7 Apr 04.




                                   ROSCOE HINTON JR.
                                   Panel Chair