RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-02063

							COUNSEL:  NONE
(DECEASED FORMER SERVICE MEMBER)

							HEARING DESIRED:  NO
(APPLICANT)



APPLICANT REQUESTS THAT:

The deceased service member’s records be corrected to reflect he 
elected Option B (Deferred Annuity) rather than Option A (Decline 
to make an Election until Age 60) under the Reserve Component 
Survivor Benefit Plan (RCSBP).


APPLICANT CONTENDS THAT:

Her husband told her he had elected SBP and that she would receive 
the annuity at his 60th birthday.

She applied for the annuity and was informed her husband did not 
respond in a timely manner and was automatically enrolled under 
the option to defer the election until age 60.  

She believes her husband was not adequately briefed on RCSBP.  She 
questions the premise that the failure to reply in 1995 resulted 
in an automatic deferral until age 60, while such an action today 
would result in automatic enrollment for immediate coverage.  This 
is an injustice. 

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


STATEMENT OF FACTS:

On 21 Apr 95, the service member was physically disqualified for 
military duty due to migraine headaches.

On 18 May 95, the applicant was notified that discharge action was 
being initiated based on his being physically disqualified for 
worldwide duty and that he qualified for early reserve retirement.

On 1 Jun 95, the service member requested to be transferred to the 
retired reserve.
On 9 Jun 95, the service member was released from his reserve 
assignment and transferred to the retired reserve to await retired 
pay at age 60.

On 24 Aug 95, the service member was notified of his eligibility 
to receive reserve retired pay at age 60 and to participate in 
RCSBP.

On 20 Jan 01, the service member passed away.

On 20 May 14, SAF/MRBR notified the applicant that she needed to 
complete a signed notarized marital status affidavit (Exhibit C).  
As of this date, no response has been received by this office.

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force office of 
primary responsibility (OPR), which is attached at Exhibit D.    


AIR FORCE EVALUATION:

DFAS-JFBE/CL recommends denial indicating there is no evidence of 
an error or an injustice.  According to the Air Reserve Personnel 
Center (ARPC), the service member was released from the Air Force 
Reserve in 1995 and sent his eligibility letter.  The service 
member did not respond within the 90 day requirement and his RCSBP 
automatically defaulted to Option A (decline to make an election 
until age 60).  The RCSBP annuity is not payable for a service 
member who was enrolled under Option A and died before age 60.

Beginning on 1 Jan 01, service members who failed to make an RCSBP 
election within 90 days after receiving their eligibility letter 
are automatically enrolled in under Option C (immediate annuity on 
day after date of death) for his dependents.

Due to the service member receiving his eligibility letter prior 
to effective date for automatic SBP coverage, the requested relief 
cannot be granted by law. 

A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While the board claims her husband never made an RCSBP election, 
she claims he completed and sent in all the required forms.  The 
applicant is requesting confirmation the RCSBP paperwork was sent 
via certified mail to prove her husband received it between 1995 
or some date 60 days before his death.  She can confirm that all 
paperwork sent to her husband after his release were completed and 
returned.
While the board states the automatic RCSBP election became 
effective 1 Jan 01, 20 days before the service member’s death, 
they cite a regulation dated more than a year after his death.

Her husband passed away from a medical condition that was service 
related.  Although he was discharged for medical condition he was 
not offered a medical evaluation board or a line of duty 
determination.  Therefore, his discharge was invalid and he was 
involuntarily retired.  The applicant is entitled to full benefits 
from the service member, but has been denied.  If proper 
procedures had been followed, and he received proper medical care, 
his death may have been prevented and would not appear to be 
related to negligence by the Air Force.

The applicant’s complete response is at Exhibit E.


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  The applicant 
contends her late spouse completed all the necessary paperwork in 
order for her to receive the SBP annuity.  We took notice of the 
applicant’s complete submission, to include her rebuttal response 
in judging the merits of the case; however, we agree with the 
opinion and recommendation of the Air Force office of primary 
responsibility (OPR) and adopt its rationale as the basis for our 
conclusion the applicant has not been the victim of an error of 
injustice.  Although the applicant believes she is entitled to the 
SBP annuity and questions the facts of the OPR’s evaluation, she 
has provided no evidence to support her request.  We note the 
presumption of regularity dictates that, absent evidence to the 
contrary, it is assumed that government officials carry out their 
duties properly and in good faith and the applicant (not the 
government) bears the burden of proof in these matters.  While the 
applicant argues that it is unfair that service members who failed 
to make an RCSBP election within 90 days after receiving their 
eligibility letter are now automatically enrolled in under Option 
C (immediate annuity on day after date of death), when the rules 
that applied to her deceased husband caused his election to be 
automatically deferred until age 60, we do not find that this 
argument is sufficient for us to grant relief.  In this respect, 
we note that this change in procedure was brought about by a 
change in law and this Board has no authority to correct a record 
in a manner that would violate the law and, other than argument 
and conjecture, the applicant has presented no evidence whatsoever 
that an error on the part of the government caused her deceased 
husband not to act when he had an opportunity to do so.  In fact, 
we note that Congress authorized two open enrollment periods from 
1 Oct 00 to 30 Sep 01 and 1 Oct 05 to 30 Sep 06, to allow 
individuals such as the deceased former member the opportunity to 
submit an election for SBP coverage, but he did not.  There is no 
evidence the applicant or the service member submitted an election 
for former spouse coverage during either of the two authorized 
open enrollment periods.  Therefore, in the absence of evidence to 
the contrary, we find no basis to recommend granting the requested 
relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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 Docket Number 
BC-2014-02063 in Executive Session on 6 May 15 under the 
provisions of AFI 36-2603:

	, Vice Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 8 May 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, SAF/MRBR, dated 20 May 14, w/atch.
      Exhibit D.  Memorandum, DFAS-JFBE/CL, dated 2 Jun 14.
	Exhibit E.  Letter, SAF/MRBR, dated 4 Aug 14.
	Exhibit F.  Letter, Applicant, dated 25 Aug 14.