ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-1999-00012
			INDEX CODE:  137.04

			COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, she requests her late husband's records be corrected to reflect that he elected full immediate coverage under the Reserve Component Survivor Benefit Plan (RCSBP). 

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STATEMENT OF FACTS:

On 25 May 1999, the Board considered an application submitted by the applicant requesting her late husband’s records be corrected to reflect he elected full immediate coverage under the Reserve Component Survivor Benefit Plan (RCSBP), even though the election was turned in late.  After considering the evidence provided, the Board determined it was insufficient to find error or injustice and denied the application.  For an accounting of the facts and circumstances surrounding the applicant’s request, and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit E.

The applicant now requests her late husband’s records be corrected to reflect he elected full immediate coverage under the Reserve Component Survivor Benefit Plan (RCSBP), in light of the 2000 amendment to 10 USC 1448.  In support of her appeal, she provided a personal statement, a copy of the response to the initial RCSBP package received from HQ ARPC, dated 20 Jul 1993, and a copy of the decedent’s death certificate.  

The applicant’s complete submission is at Exhibit F.  

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AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG, reviewed the applicant’s request for reconsideration based on the 2000 amendment to 10 USC 1448.  Before 1 Jan 2001, the Air Force deemed a member who failed to make an election during the RCSBP 90-day period as having elected to defer coverage until age 60.  In 2000, 10 USC 1448 was amended to entitle a deceased service member’s spouse to receive an annuity payment under the RCSBP where the service member submitted his election decision past the statutorily imposed 90-day deadline.  This change creates a default process whereby the member is considered to have elected to participate in the program unless the member affirmatively chooses to opt-out (with the spouse’s consent) within the 90-day period.  In other words, a member’s failure to return the election form within the 90 days simply means that the member agrees to take part in the program.  It no longer acts as a bar to membership.

Unfortunately for the applicant, the amendment applies only to members who are notified after 1 Jan 2001, that they have completed the years of service required for eligibility for reserve-component retired pay.  The law does not provide any mechanism to retroactively place those service members in the RCSBP who, prior to the 2000 amendments, did not meet the 90-day election deadline.  Accordingly, they found no error supporting the applicant’s petition.

A complete copy of the evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Having been provided the advisory opinion, the applicant submitted a personal statement for the Board’s review in which she gave a brief summary of her late husband’s service history and experiences during his career.  She explained the circumstances surrounding the RCSBP package and that unfortunately it was not returned within the 90-day period.

She opined throughout this process that the law was unjust and failed to safeguard families in these situations.  She expressed her concerns to her members of congress and was informed that the law was being reviewed for submission for legislative change.  She has contended all along that the previous law was flawed and did not provide families with the protection intended when it was written.  She again asks the Board to reconsider her request because the original denial was based on an unfair and unjust law that has since been changed to reflect the needs of military families.

A complete copy of the applicant’s review is at Exhibit I.

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THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in support of the appeal, a majority of the Board remains unpersuaded that a revision of the earlier determination in this case is warranted.  We have carefully reviewed the applicant’s submission in judging the merits of this case.  In her most recent submission, the applicant asserts that prior to the 2000 amendment the previous law was flawed and unjust, and it did not provide families with the protection intended when it was written.  Thus the law was amended to correct this situation.  A majority of the Board finds that based on the evidence of record and the opinion provided by the Office of the Judge Advocate General, the law, unfortunately for the applicant, only applies to members who are notified after 1 Jan 2001, and does not provide any mechanism to retroactively provide coverage to those members, who, prior to the 2000 amendment, did not meet the 90-day election deadline.  Based on the foregoing, and in the absence of evidence to the contrary, a majority of the Board finds no basis on which to favorably consider the requested relief.
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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-1999-00012 in Executive Session on 22 September 2003, under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  XXXXXX voted to grant the applicant’s request and did not want to submit a minority report.  The following documentary evidence was considered:

	Exhibit E.  Record of Proceedings, dated 28 May 1999,
                with Exhibits.
	Exhibit F.  Applicant’s DD Form 149, dated 10 Mar 2003, with 
                attachments.
    Exhibit G.  Letter, AF/JAG, dated 27 May 2003.
    Exhibit H.  Letter, AFBCMR, dated 6 Jun 2003, with
                attachment.
    Exhibit I.  Letter, Applicant, dated 5 Aug 2003, with
                attachments.