RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01784
		INDEX CODE:  137.04

  	COUNSEL:  

  	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her late husband's records be corrected so that she may receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity based on full retired pay rather than a reduced annuity.

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APPLICANT CONTENDS THAT:

Applicant states that the deceased military member believed he had elected the maximum benefit option and that he was incapacitated when the later open season enrollment occurred.

In support of her request, applicant submits a personal statement, the former member’s Death Certificate, a DFAS Indebtedness package, and supporting statements from family members, friends, their physician and pastor.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. 

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AIR STAFF EVALUATION:

HQ ARPC/DPS reviewed this application and recommended denial.  The member was notified of his eligibility to participate in the RCSBP when he was first eligible in Aug 1984, and selected Option C, Immediate Annuity for Spouse and Children, based on $300 of his retired pay.  
During the two RCSBP open enrollment seasons (1 Apr 92 to 31 Mar 93 and 1 Mar 99 to 28 Feb 00), members who elected less than full coverage for their spouses were able to elect increased coverage.  A package was sent to the member at his mailing address.  There is no record of an increased election being made by the member at that time.
The applicant claims that her late husband did not know he was electing less than the maximum amount available for survivors benefits.  However, the applicant signed the election acknowledging the selection made in Aug 84 and has indicated in her testimony that the member had received counseling.
Applicant’s statement claims her late husband was not mentally capable of making any rational decisions during the 1999 – 2000 RCSBP open enrollment election period.  The first RCSBP open enrollment season was mailed in Mar 92.  We cannot say with any certainty if the deceased member was either rational or irrational during the second open enrollment.  Statements from family and friends indicate the deceased member was suffering from severe depression.  Applicant’s doctor had three counseling sessions with the member during 1998 and concluded that he had severe depression.  He states that the deceased member displayed a “flat and blunted affect” during later conversations.  However, none of these instances were documented because the member was not under his care, nor did he provide any time period that the conversations might have taken place.
Testimony provided by the applicant appears to reflect incorrect counseling was provided to the deceased member and the applicant in Aug 1984.  A detailed package, including an election form, sample calculations, and instructions to contact HQ ARPC Entitlements branch or a local military personnel flight to receive additional counseling, was sent to assist the member in making an informed decision within the 90 days provided by law.  
Based on the selection made in Aug 84, the applicant is entitled to approximately 55 percent of $300 prior to age 62, then approximately 35 percent thereafter.
A complete copy of the evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

Applicant’s counsel provided a response to the Air Force evaluation, which included another letter from the applicant, her son-in-law and a friend of the deceased military member.
Counsel’s complete statement, with attachments, is attached at Exhibit D.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 AFBCMR Docket Number 02-01784 in Executive Session on 21 January 2003, under the provisions of AFI 36-2603:

           Panel Chair
           Member
           Member

   Exhibit A.  DD Form 149, dated 20 May 02, w/atchs.
   Exhibit B.  Letter, ARPC/DPS, dated 5 Aug 02, w/atchs.
   Exhibit C.  Letter, AFBCMR, dated 9 Aug 02.
   Exhibit D.  Letter, Response from Applicant’s Counsel, dated                29 Aug 02, w/atchs.

                                   
                                   Panel Chairman