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AF | BCMR | CY2004 | BC-2004-03077
Original file (BC-2004-03077.DOC) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03077
            INDEX NUMBER:  137.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he  declined  Survivor  Benefit
Plan (SBP) coverage on 17 Feb 04.

___________________________________________________________________

APPLICANT CONTENDS THAT:

In 1992, his customer service branch informed him to complete  ARPC
Form  123,  Reserve  Component  Survivor  Benefit   Plan   Election
Certificate, to provide an immediate annuity to his spouse  on  the
day after his death, whether before or after age 60.

In support of his request, applicant provided copies  of  his  ARPC
Form 123, and DD Form 2656, Data for Payment of Retired Personnel.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 2 Nov 92, the applicant was  notified  of  his  eligibility  for
retired pay at age 60 and that he was eligible  to  participate  in
the RCSBP.  On 27 Dec 92, he executed ARPC Form 123 electing spouse
and child coverage, under Option C (immediate  annuity),  based  on
full retired pay.

Applicant’s date of birth is  27  May  1944.   On  17  Feb  04,  he
executed DD Form 2656,  Data  for  Payment  of  Retired  Personnel,
electing not to participate in the SBP.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  ARPC/DPS  reviewed  this  application  and  recommends  denial.
According to Title 10,  United  States  Code,  Section  1448a,  the
member will be able to withdraw his RCSBP election  during  a  one-
year period starting on his 62nd birthday, 27 May 06.  This can  be
done by contacting DFAS Cleveland and completing a DD Form  2656-2.
Until such time he will continue to pay  the  monthly  premium  for
immediate annuity coverage.

A copy of the Air Force evaluation, with attachments, is at Exhibit
B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 29 Oct 04 for review and comment within 30  days.   As  of  this
date, no response has been received by this office (Exhibit C).

___________________________________________________________________

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.   Applicant’s
contention that, in 1992, his customer service branch told  him  to
complete an ARPC Form 123 to provide an immediate  annuity  to  his
spouse on the day after his death is duly noted.  However, the ARPC
Form 123 executed by the applicant clearly advised him to  consider
his decision with respect to participation in the Survivor  Benefit
Plan and its effect very carefully.   The  responsibility  for  the
type  and  level  of  coverage  elected  rested  solely  with   the
applicant.  Inasmuch as the applicant elected immediate spouse  and
child coverage based on full  retired  pay,  it  is  reasonable  to
assume that he had at least a basic understanding of the effects of
his election.  Furthermore, the law governing the Survivor  Benefit
Plan does not provide for members to arbitrarily withdraw from  the
plan.   However,  by  law,  the  applicant  will  be  afforded   an
opportunity to terminate his  coverage  during  a  one-year  period
beginning on the second anniversary of his receipt of retired  pay.
Based on the foregoing, and in  the  absence  of  evidence  to  the
contrary, we find no compelling basis  to  recommend  granting  the
relief sought in 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 Docket Number BC-2004-
03077 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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Sep 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPS, dated 25 Oct 04, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 29 Oct 04.




                                   ROSCOE HINTON JR.
                                   Panel Chair

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