RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01914
            INDEX NUMBER:  137.01

            COUNSEL:  Aimee LaFever Koch

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show he  elected  to
participate in the Reserve Component Survivor Benefit Plan (RCSBP).

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APPLICANT CONTENDS THAT:

She was not afforded spousal notification  of  her  late  husband’s
deferment election under the Survivor Benefit  Plan  (SBP)  law  of
1972.

In support of her request, applicant provided a statement from  her
attorney, a copy of her late husband’s Certificate  of  Death,  and
various documents pertaining to the former member’s discharge.

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

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STATEMENT OF FACTS:

The former member became eligible to participate in the RCSBP after
completing 20 satisfactory years of service.  The election package,
sent by certified mail, was signed for on 18 Oct 93.  There  is  no
evidence he made an election at that time.  At the end of  the  90-
day suspense, he was automatically enrolled in Option  A,  Deferred
Election until Age 60, 15 Jan 94.

The former member remained eligible to elect coverage  under  RCSBP
upon reaching age 60, but he passed away prior to reaching age 60.

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and  recommends  denial.   No
injustice has  occurred,  the  former  member  neglected  to  elect
coverage when he was eligible.

Title 10, U.S.C., Section 1448 (10 USC 1448), Second Session  1992,
states, a person who does not elect  to  participate  in  the  Plan
before the end of the 90-day period remains eligible, upon reaching
60 years of age and otherwise becoming entitled to retired pay,  to
participate in  the  Plan  in  accordance  with  eligibility  under
paragraph 1(A).

During the 1 Mar 99 to  29  Feb  00  SBP  open  enrollment  season,
members who had made no election or who had elected less than  full
coverage for their spouses were able to change  their  election  to
add or increase coverage.  A package was sent to the former  member
(at the applicant’s current address); however, there is no evidence
that he made an election at that time.

The applicant states she was not afforded spousal  notification  of
her husband’s  deferment  election  under  the  SBP  law  of  1972.
However, 10 USC 1448, Second Session 1992, which refers to  reserve
component survivor benefit  plan  annuity,  (the  title  which  the
member  fell  under  during  his  retirement  eligibility)  states:
(3)(B) “A married person who is  eligible  to  provide  a  reserve-
component annuity may not without the concurrence of  the  person’s
spouse elect; (i) to provide an annuity for the person’s spouse  at
less than the maximum level; or (ii) to provide an  annuity  for  a
dependent child but not for the person’s spouse.”  10 USC 1448 does
not state the United  States  Air  Force  must  notify  the  spouse
whenever; (a) the member makes an  election  or  (b)  an  automatic
election is made for the member.   The  only  time  the  spouse  is
notified is when the military member elects the annuity to be;  (a)
less than maximum coverage or; (b) is being  left  to  a  dependent
child and not the spouse.

In 2001,  Title  10  USC  1448  enacted  new  changes  for  reserve
component members.  However, these  changes  do  not  retroactively
affect previous set laws.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 23 Jul 04, a copy of the Air Force evaluation was  forwarded  to
the applicant for review and comment within 30 days.   To  date,  a
reply has not been received by this office (Exhibit C).

On 7 Oct 04, a copy of the Air Force evaluation was data  faxed  to
applicant’s counsel.   To  date,  no  response  has  been  received
(Exhibit C).

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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 error or injustice.  The former member
had  two  opportunities  to  establish  survivor  coverage  in  the
applicant’s behalf; however, there is no evidence that he  made  an
election to do so.  When the former service member did  not  submit
an election to participate in the RCSBP within  the  90-day  period
required by  law,  he  was  automatically  enrolled  in  Option  A,
Deferred Election until Age 60.  Applicant  contends  she  was  not
afforded  spousal  notification  of  her  late  husband’s  deferred
election.  However,  the  section  of  law  applicable  to  reserve
component members in effect at  the  time  the  former  member  was
eligible to participate in the Reserve Component  Survivor  Benefit
Plan did not require spousal notification if  the  member  deferred
making an election until age  60.   We  therefore  agree  with  the
opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt their  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of  an  error
or injustice.  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.

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  issues  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 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.

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The following members of the Board considered Docket Number BC-2004-
01914 in Executive Session on  24  September  2004  and  11 January
2005, under the provisions of AFI 36-2603:

      Mr. Roscoe Hinton Jr., Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Patricia D. Vestal, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Jun 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPS, dated 21 Jul 04.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Jul 04;
                Letter, AFBCMR, dated 7 Oct 04.




                                   ROSCOE HINTON JR.
                                   Panel Chair