RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00214
            INDEX CODE:  137.01

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband and former military member’s record be changed to
show he elected to  participate  in  the  Reserve  Component  Survivor
Benefit Plan (RCSBP) and further that she receive the retired pay  her
husband had been eligible to receive for the nine month period  of  23
December 2005 to 27 September 2006.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband never received his retirement  pay  for  which  he  became
eligible in December 2005.  She has been  denied  the  opportunity  to
receive the Reserve Component Survivor Benefit Plan (RCSBP) for  which
she has been eligible as surviving spouse since September 2006.

In  support  of  her  appeal,  the  applicant  has  provided  a  death
certificate and copies of personnel-related paperwork.

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

_________________________________________________________________

STATEMENT OF FACTS:

The member became eligible for Reserve retired pay under the provision
of 10  United  States  Code  (U.S.C.),  Section  12731,  effective  23
December 2005, his 60th birthday.  By  law,  members  must  apply  for
retired pay as receipt of such is not automatic.  To apply for Reserve
retired pay at age 60, a member must complete retired pay  application
forms and submit them to the Air Reserve Personnel Center  (ARPC)  for
approval and processing.  A retired pay packet was sent to the  member
on 18 July 2005; however, there is no record of  the  completed  forms
ever being  received  by  ARPC.   A  review  of  the  member’s  record
indicates he had the opportunity to make a  RCSBP  election  in  1989;
however, he did not complete and return his  election  form  to  ARPC.
The  effective  date  of  the  SBP  election  would  be  the  member’s
60th birthday.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends denial.  DPP states the member never  applied  for
retired pay nor did he make an RCSBP election.

DPP’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the ARPC advisory and notes her  deceased
husband gave 20 years of distinguished  service  to  his  country  and
incredibly, as a result of dementia and alcoholism,  failed  to  apply
for retirement and thus become eligible to elect  RCSBP  coverage  for
his spouse.  He died of cardiovascular disease on 27  September  2006.
The applicant contends as a result of his illnesses he  was  prevented
from acting in  his  own  best  interest.   Further,  those  illnesses
conflicted with her right to  be  advised  of  a  lack  of  a  pension
decision.  Her rights, under the law, are to be  notified  should  her
then spouse not make an  RCSBP  election.   She  was  never  notified.
Applicant states she can no longer work  and  is  living  on  a  small
disability payment  from  Social  Security  while  being  treated  for
ovarian cancer for which she has underwent two operations.  One of the
strongest attractions of military service, in addition to the honor of
serving one’s country, is the contract to retire  after  20  years  of
service.  She is hopeful her appeal  to  correct  her  late  husband’s
service record will be granted as to deny her  small  portion  of  his
pension on a technicality would be a travesty of justice.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  We noted the applicant’s  claim  her
now  deceased  spouse  was  suffering  from  advanced  alcoholism  and
dementia which prohibited him from either  applying  for  his  Reserve
retired pay or making a valid RCSBP election.  We  further  noted  her
contention that her right to notification and consent  or  non-consent
under the law was not honored by the  Air  Force.   The  AFBCMR  Legal
Advisor states Public Law at the time  required  spousal  consent  for
declination of Reserve retired benefits.  The applicant denied she was
ever notified of her right to choose between consent  and  non-consent
of her now deceased spouses choices concerning RCSBP.  The absence  of
the required  documentation  of  spousal  consent  in  the  decedent’s
military record either confirms her contention she  was  not  notified
nor granted the opportunity to provide non-consent or it indicates the
Air Force  misplaced  any  documentation  she  might  have  submitted.
Regardless of which, either explanation leads to granting her  request
for RCSBP benefits.  In  fact,  earlier  SBP  case  law  supports  her
position as it shows courts are unwilling to rely on  the  presumption
of regularity  when  faced  with  an  applicant’s  assertion  of  non-
compliance and a lack of  government  documentation  of  the  required
notification and consent.  Therefore, we 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 23 December 2005:

      a. He applied for Reserve retired pay and his application was
approved by competent authority.

       b. He made a valid  Reserve  Component  Survivor  Benefit  Plan
election, based on full, retired pay, naming his spouse, M.K.  as  the
beneficiary.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-00214  in  Executive  Session  on  19  October  2007,  under  the
provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Alan A. Blomgren, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 January 2007, w/atchs.
    Exhibit B.  Letter, HQ ARPC/DPP, dated 23 February 2007.
    Exhibit C.  Letter, SAF/MRBR, dated 2 March 2007.
    Exhibit D.  Letter, Applicant, dated 23 March 2007.
    Exhibit E.   Letter,  SAF/MRB,  dated  18  September  2007,
w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair