RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00528
		INDEX CODE:  137.00

		COUNSEL:  XXXXX

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Applicant is the spouse of a former service member, who requests corrective action that would entitle her to a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

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APPLICANT CONTENDS THAT:

Counselor for the applicant states that the record is in error to the extent that it reflects that the former service member did not make the proper elections or complete the proper applications to entitle his wife to survivor’s benefits or other benefits to which she may be entitled.  The applicant has not yet obtained the relevant records, despite having requested the same.  She will supplement this application on receipt of the relevant records.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 15 October 1996, the former member, who was then serving in the grade of technical sergeant in the Air Force Reserve, was transferred to Retired Reserve under the provisions of the Reserve Transition Assistance Program (RTAP) (retirement with more than 15 and less than 20 years of satisfactory Federal service because of physical disqualification).  He was credited with 17 years, 6 months and 27 days of satisfactory Federal service.  The deceased former member would have reached age 60 on 15 December 2006.  The member was notified of his eligibility to participate in the RCSBP when he was first eligible on 18 February 1997.  The election package was mailed certified mail and was signed for by the member.  There is no record of any election having been made by the member.  The member died on 14 February 1998, after a lengthy battle with cancer.

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AIR FORCE EVALUATION:

The Director, Directorate of Customer Assistance, HQ ARPC/DPS, reviewed the application and states that the member was notified of his eligibility to participate in the RCSBP when he was first eligible on 18 February 1997.  The election package was mailed certified mail and was signed for by the member.  There is no record of any election having been made by the member.  The member failed to elect coverage when he was initially eligible.  Indications are that he was quite ill at the time that he received his election package; however, they see no error or injustice in the manner in which he was notified of this program.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In reference to the advisory stating the former member failed to elect RCSBP when initially eligible in February 1997, counsel states that the opinion relies on the mailing of an election package to the former member, and the apparent lack of any response.  However, the mere absence of the required form from the former member’s file is insufficient to negate the evidence that the former member did make the appropriate election.  The advisory opinion overlooks the extraordinary steps that the former member took to provide for his family.

The former member knew he was dying and confronted with his impending death, the former member did everything possible to provide for his family financially.  While some eligible participants might decline SBP, perhaps to avoid the expense, it makes no sense that a dying man would decline an available death benefit.  From that alone, one might infer that the former member completed and returned the election packet.  Given that such completion is not now reflected in his record, the error would appear to be that of the Air Force, and not an error on the part of a dying man seeking to provide for his widow.

Even if the former member did not properly complete the election packet, there is still an error or injustice in denying his family the benefit that he had earned.  He states the advisory opinion finds no error or injustice in the manner in which he was notified of this program.  However, the inquiry should not be so limited.

He states it would be an injustice to deny the benefit that the former member earned, even if he did receive proper notice and even if he failed to follow through on that notice.  The evidence indicates that the former member believed that he had made the appropriate election.

Given the former member’s efforts to provide for his family it is unlikely that his military record correctly reflects such a failure.  However, even if the fault is with the former member, it is in the interest of justice to correct the record to reflect the election of RCSBP.

Counsel's complete response is attached at Exhibit E.

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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 probable error or injustice.  After reviewing the evidence of record, we are not persuaded that the former member’s records are either in error or that she has been the victim of an injustice.  The evidence before this Board reveals that on 18 February 1997, the Air Force notified the member, by certified mail, of his eligibility to participate in the RCSBP.  The RCSBP package informed him that he had 90 days in which to make an election if he desired to participate.  The Air Force never received an election within the 90 days, as required by law.  In the absence of evidence to the contrary, we find no error has been committed by the Air Force.  The only other basis upon which to recommend granting the relief requested is whether or not the member has been the victim of an injustice.  The statements submitted on behalf of the former member have been thoroughly reviewed.  However, we have no evidence that the member’s health problems at that time prevented him from determining whether or not he wanted to elect coverage under the RCSBP.  To the contrary, it appears that the member made several important decisions pertaining to benefits for his family after he was diagnosed with cancer.  While we are sympathetic to the applicant being denied RCSBP benefits, we do not believe that sufficient evidence has been provided showing that the member has been the victim of an injustice.  In view of the above findings and in the absence of evidence showing that the member’s physical or mental condition in 1997 prevented him from making an informed decision concerning the RCSBP election, we find no basis upon which to recommend favorable action on 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 issue(s) 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 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.

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The following members of the Board considered this application in Executive Session on 25 September 2001, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 14 Feb 01, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, HQ ARPC/DPS, dated 2 Jul 01.
	Exhibit D.	Letter, AFBCMR, dated 6 Jul 01.
	Exhibit E.	Counselor’s Letter, dated 3 Aug 01.

					
					Panel Chair