RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01017
            INDEX CODE:  137.04
            COUNSEL:  NONE
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be entitled to receive  the  Reserve  Component  Survivor  Benefit  Plan
(RCSBP) annuities.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was informed that her late husband  was  mailed  Survivor  Benefit  Plan
election forms and documents by the Defense Finance and Accounting  Services
office in 1999; however, the information was never received.

She is not entitled to claim her late husband’s military pension because  he
died before his 60th birthday.

In support of the  application,  the  applicant  submits  a  letter  to  her
husband’s commander, the Air Reserve Personnel Center’s letter to  her  late
husband, and her late husband’s death certificate.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember died on 30 Nov 08.  He would have been afforded  an
opportunity to elect RCSBP coverage on 1  May  2009  –  his  60th  birthday.
Because he was eligible for retirement pay at age 60, his widow is  eligible
for Identification Card, Base Exchange and Commissary  privileges.   She  is
also eligible to apply for medical and dental benefits through  the  TRICARE
program.  His original election (Option A, Deferred election until age  60),
made in Jan 91, does not entitle the applicant to receive an RCSBP  annuity.


_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  DPP states the  former  service  member  was
required  to  make  an  RCSBP  election  within  90  days  of   receipt   of
notification; however, he did not make an election when  eligible  in  1990.
Members who had elected less than full coverage or  no  coverage  for  their
spouse/children were able to  change  their  election  coverage  during  the
RCSBP Open Seasons from Oct 1999 through 30 Sep 2000 and Oct 05  through  30
Sep 06, respectively.  The servicemember was provided notification  of  both
open enrollments; however, he made no elections for RCSBP coverage.

DPP is not unsympathetic; however, by law cannot change the election.

The complete DPP evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterates she had no knowledge of her late husband’s  receipt  of
the SBP enrollment information.  She does not  understand  why  her  husband
did not mention receiving the information and has not located  the  form  in
his files.

The applicant’s complete response is at Exhibit D.

_________________________________________________________________

SAF/MRB LEGAL ADVISOR EVALUATION:

The SAF/MRB Legal Advisor states the former servicemember  declined  Reserve
Survivor Benefit Program (RSBP)  coverage  by  default  when  he  failed  to
return the election paperwork.  He twice declined  coverage  during  periods
of open  enrollment  and  then  dies  prior  to  reaching  age  60  when  in
accordance with current law 1) he could have chosen  RSBP  coverage  and  2)
his spouse would have been required to consent  to  less  than  maximum  SBP
coverage.

The Legal Advisor states the attachments to  the  HQ  AFPC/DPP  advisory  is
sufficient to establish that a notification was mailed to the  proper  legal
address thereby providing adequate legal notice to the spouse.  However,  he
opines the  fact  the  member  and  spouse  were  on  legal  notice  is  not
inconsistent with the applicant’s assertions that she  did  not  know  about
the open enrollment opportunity.  He surmises it is possible  the  mail  was
lost or stolen, or more than likely, the member received the  mail  and  did
not discuss it or the SBP issue with the applicant.

The Legal Advisor concurs the  DPP  advisory  correctly  concludes  the  Air
Force did what it should have done in accordance with the law in  effect  at
the time and has no authority to change the election decision.

The Legal Advisor notes since 2001 automatic enrollment will apply to  those
who  do  not  respond  to  either  two-year  letters  or  applications   for
retirement with notarized spousal consent to  RSBP/SBP  declination.   As  a
consequence, those individuals who were not  enrolled  in  RSBP  by  default
prior to 2001 will require spousal consent  to  SBP  declination  when  they
reach age 60.  The  consequences  of  these  changes  is  that  there  is  a
“bubble” group of members awaiting retirement without  RSBP  coverage  whose
widows may argue they did not know of the declined coverage.

The complete Legal Advisor evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW SAF/MRB LEGAL ADVISOR’S EVALUATION:

Her husband never received any  enrollment  notification  information.   She
searched through his files and was unable to find any  paperwork  pertaining
to SBP.  A week  prior  to  his  death,  he  indicated  he  needed  to  make
inquiries regarding his retirement pension.

The first time and only time she had ever seen any SBP  paperwork  was  when
it was forwarded to her with the ARPC/DPP advisory.  She and her spouse  did
not discuss much of his military life as they  were  too  busy  raising  and
educating their five sons.  She and her spouse met and married  in  England.
She joined him stateside approximately  five  months  later.   He  separated
from the Regular Air Force and joined the Air National  Guard  and  Reserve;
however,  he  kept  his  military  life  separate  from  our  family   life.
Nevertheless, she supported his loyalty to service and country.

She did not know that she was not entitled to his military pension  and  now
wishes that she had discussed pension and benefit matters  with  him  before
his death.  She did not expect her husband to die at the age of 59  and  his
unexpected death has greatly impacted her life and the  lives  her  children
and grandchildren.

His 60th birthday, Father’s Day  and  Independence  Day  were  indescribably
difficult and no amount of pension can compensate  for  her  loss;  however,
she knows had he lived, he would have wanted her to have his benefits.

The applicant’s complete submission is at Exhibit G.

_________________________________________________________________

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 applicant’s contentions that  she  had
no  knowledge   of   her   husband’s   military   life,   to   include   his
responsibilities regarding RCSBP  elections  are  duly  noted;  however,  we
agree with the opinion and recommendation  of  HQ  ARPC/DPP  and  adopt  its
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error or injustice.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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  AFBCMR  BC-2009-01017  in
Executive Session on 24 September 2009, under  the  provisions  of  AFI  36-
2603:

      Mr. Joseph D. Yount, Panel Chair
      Ms. Karen A. Holloman, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 24 Feb 09, w/atchs.
      Exhibit B.  Letter, HQ ARPC/DPP, dated 29 Apr 09, w/atchs.
      Exhibit C.  Letter, SAF/MRBR, dated 1 May 09.
      Exhibit D.  Letter, Applicant, dated 8 Jun 09.
      Exhibit E.  Letter, SAF/MRB Legal Advisor, dated 25 Jun 09.
      Exhibit F.  Letter, AFBCMR, dated 29 Jun 09, w/atch.
      Exhibit G.  Letter, Applicant, dated 15 Jul 09.



                                   JOSEPH D. YOUNT
                                   Panel Chair