RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01714
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His record be changed to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with an annuity based on the full amount of retired pay.

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APPLICANT CONTENDS THAT:

He retired in 1996 after 25 years of service in the --- Air National Guard.  He was not approached by anyone concerning his retirement benefits.  Unfortunately, he has been diagnosed with cancer and now he is unsure if he will ever reach the age of 60 to draw retired pay.  He called to check on his retirement benefits recently due to his illness and it was then he found out that he was supposed to have filled out a retirement option form prior to retirement.  The entitlement office in Denver stated that a letter was sent in 1999 to his house.  He states this letter was never received at his home.  He is wondering why no one has checked his file to follow up on why his retirement options were not completed and placed in his file at either of these times.

In support of his application, he provided a personal statement.  The applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The former member, while serving in the grade of senior master sergeant in the Air National Guard, was relieved from his assignment and transferred to the Air Force Reserve, Nonaffiliated Reserve Section on 3 February 1996.  Information extracted from the Personnel Data System indicates he had accrued 20 years of satisfactory Federal service as of 2 February 1991.  The former member’s spouse provided a copy of a Certificate of Death showing the former member died on 15 July 2002.

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AIR FORCE EVALUATION:

ARPC/DPS states the former member was notified of his eligibility to participate in the RCSBP when he was first eligible in October 1991.  A detailed package was sent to his mailing address and signed for by the former member on 6 July 1991.  DPS has no record he made an election.

DPS stated that their records indicate the applicant was notified concerning the RCSBP open enrollment seasons for the periods 1 April 1992 to 31 March 1993 and 1 March 1999 to 28 February 2000.  They have no record the member made an election at either time.  While they sympathize with the entire family, the former member had numerous opportunities to make an election.  The evidence provided does not indicate any injustice has occurred.  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:

The spouse of the former member states in October of 1991, the former member signed for the package explaining retirement benefits that he was to review and elect the option of coverage to be provided.  The Air Force records do not indicate that the former member replied to the information provided.  During this period, Option A was the default option for failure to return ARPC Form 123-1.  In January 2001, the policy changed to default to Option C for failure to return ARPC Form 123.  The January 2001 policy does not provide limitations for the retirees to whom this policy applies.  As there is no ARPC Form on file for the former member, then Option C should apply, as this was the policy in effect at the time of his death.  She also read in the letter of 1 November 2002, that the former member was provided two other notifications to elect a benefit option for retirement.  As he was required to sign for the benefit options package in 1991, why was a signature not on file for these notifications as well?  She has searched through their family records and has no record of these notifications being received.

She knows that over the years it is possible that many servicemen may not have returned their forms or may have provided incomplete information or information in the improper format.  She truly believes that the options for retirement were changed in 2001 for this very reason.  She asks to please reconsider the recommendation to the Review Board to allow her family benefits from the former member’s retirement.  His service of 25 and one‑half years should not be disregarded after his death, and their family depended on receiving his retirement to care for them as she gets older.

In a separate submission, the spouse of the former member provided a letter stating that an ARPC Form 123 packet was sent to the former member in May 2002.  The packet had a 90-day suspense on it and was returned within the time allowed.

Copies of the spouse’s responses, with attachments, are 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 error or injustice.  In his initial submission, the former member stated he never received a letter concerning the RCSBP that was mailed to his house in 1999.  The first time the former member was eligible to make an election under the program was in 1991, at the time he was notified of his eligibility to receive retired pay at age 60.  According to the ARPC/DPS, the former member signed for the notification package but made no election at that time.  DPS further indicates that mailings were sent to the former member during the two open enrollment seasons in 1992 and 1999 and that he made no election during either period.  As to the applicant’s observation that ARPC failed to produce signed receipts for these mailings, we are aware that there was no requirement for certified mailings of notifications for open enrollment seasons.  However, we do note that the former member’s mailing address from the time he received the 1991 mailing until his demise remained the same.  The applicant believes the 2001 change to the law pertaining to SBP coverage for Reserve members requiring automatic enrollment under the immediate coverage provision if the member made no election when initially notified should apply in her case.  However, contrary to her belief, this change was of no benefit to the applicant since the law specifically applied only to those members who were notified they had accrued 20 satisfactory years after 1 January 2001.  By law, the next opportunity for former member to enroll in the Survivor Benefit Plan would have been at the time he reached age 60, which would have occurred on 24 October 2004.  Therefore, the fact that he was provided an election certificate for completion in 2002 was an error and to accept that form as a valid election would have been contrary to the governing statute.  Accordingly, based on the above and in the absence of evidence that refutes the information provided by the Air Force, we have no basis on which to favorably consider this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 30 September 2003 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 15 May 2002, with attachment.
	Exhibit B.  Former Member’s Military Personnel Records.
	Exhibit C.  Letter, 16 October 2002, with attachments.
	Exhibit D.  Letter, SAF/MRBR, dated 1 November 2002.
	Exhibit E.  Letters from the applicant, dated 7 November and
			      19 November 2002, with attachments.

                                   
                                   Panel Chair