RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02540
            INDEX NUMBER: 137.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s record be corrected to reflect she  filed  a
timely claim  for  her  Reserve  Component  Survivor  Benefit  Plan
(RCSBP) annuity.

___________________________________________________________________

APPLICANT CONTENDS THAT:

She is unjustly  being  denied  her  survivor  benefits  due  to  a
technicality.  The Air Force was notified of her  husband’s  death,
he received a military funeral at sea, the DEERS system updated his
record as deceased, the OSGLI awarded her death benefits,  and  the
VA was notified.

Misleading Air Force correspondence indicated she was not  eligible
for benefits until her husband’s 60th birthday.  She was not  aware
her husband had chosen Option C (Immediate Annuity) and  still  has
no documentation to that effect.  The Air Force  was  negligent  in
their duty to inform her of her survivor benefits.  The  Air  Force
presently claims they owe her nothing due to a  6-year  stipulation
in the U.S. Code.  Had she contacted the Air Force less  than  five
months earlier she would have received the entire annuity.   It  is
unjust and inequitable to deny her the benefits  her  late  husband
worked so hard to provide.  She had no knowledge  of  any  benefits
due her immediately upon her husband’s death.

In  support  of  her  request,  applicant  provided  her   personal
statement, copies of her husband’s Certificate of Death and various
documents pertaining to the former member’s retirement, and a  copy
of the statute of limitations on time of death reporting.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 2 Feb 88, the former member was notified of his eligibility  for
retired pay at age 60 and that he was eligible  to  participate  in
the RCSBP.  On 28 Mar  88,  he  executed  ARPC  Form  123,  Reserve
Component Survivor  Benefit  Plan  Election  Certificate,  electing
spouse and child coverage,  under  Option  C  (Immediate  Annuity),
based on full retired pay.

The former member’s date of birth is  22  Mar  1944.   He  died  on
25 Oct 97.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and recommends denial.  While
the applicant claims she was not aware her husband had  chosen  the
immediate annuity option for RCSBP and that  she  received  written
correspondence stating she was not eligible for benefits until  her
husband’s 60th birthday, records indicate the  member  received  an
RCSBP package explaining in detail how the RCSBP permits  a  member
to provide a monthly annuity to their designated  beneficiaries  in
the event of their death.

The applicant notified the entitlements  branch  of  her  husband’s
death on 12 Feb 04, when her husband would have become eligible for
retired pay at age 60.  Since  more  than  six  years  has  elapsed
between the member’s death and this application, the petitioner may
not be paid an SBP annuity.  This decision is  in  accordance  with
Title 31, Chapter 37, Section (1)(A)(b)(1)(a), “A claim against the
Government presented under this section must contain the  signature
and address of the claimant or an authorized  representative.   The
claim must be received by the official responsible under subsection
(a) for settling the claim or  by  the  agency  that  conducts  the
activity from which the claim arises within 6 years after the claim
accrues.”  ARPC/DPS does not believe an injustice occurred in  this
case; the applicant failed to notify their office of her  husband’s
death.

The complete Air Force evaluation, with attachments, is at  Exhibit
B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated her contentions and further noted a  statement
contained in the  letter  to  her  husband  notifying  him  of  his
eligibility for retired pay at  age  60;  i.e.,  “…eligibility  for
retired pay may not be denied or revoked on the basis of any error,
….”

Applicant’s complete response 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 not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of error or injustice.  After careful review  of  the
applicant’s complete submission, we believe  there  may  have  been
some confusion as to when the applicant believed  she  could  apply
for her survivor annuity.  Since the correspondence to  the  former
service member indicated he was entitled  to  Reserve  retired  pay
upon application at age 60, it appears she was under the impression
she had to wait until her husband’s 60th birthday,  more  than  six
years after his death, before she  could  apply  for  her  survivor
annuity.  Otherwise, we believe she would have filed an application
for the annuity immediately following his death  in  October  1997.
In view of this, we believe it would be an injustice  to  deny  the
applicant the survivor benefits her husband had  elected  for  her.
We therefore conclude that any doubt  should  be  resolved  in  the
applicant’s favor and recommend that the records  be  corrected  as
indicated below.
___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show  that  on  10  December
1997,  his  widow,  xxxxxxxxxxxxxxxxx,  submitted  a  claim  for  a
survivor benefit annuity.
___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2004-02540 in Executive Session on 2 December  2004,  under  the
provisions of AFI 36-2603:

      Mr. Roscoe Hinton Jr., Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Michael K. Gallogly, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 9 Aug 04, w/atchs.
     Exhibit B.  Letter, ARPC/DPS, dated 9 Sep 04, w/atchs.
     Exhibit C.  Letter, SAF/MRBR, dated 10 Sep 04.
     Exhibit D.  Letter, Applicant, dated 29 Sep 04, w/atchs.




                                   ROSCOE HINTON JR.
                                   Panel Chair


AFBCMR BC-2004-02540




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to xxxxxxxxxx, xxx-xx-xxxx, be corrected to show
that on 10 December 1997, his widow, xxxxxxxxxxxxx, submitted a
claim for a survivor benefit annuity.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency