RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03589
				INDEX CODE:  137.00

	           (Deceased)	COUNSEL:  None

	  		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

Her late husband’s record be corrected to reflect he elected spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) so that she may receive the annuity.

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APPLICANT CONTENDS THAT:

She believes she should receive monthly monetary benefits through her late husband’s retirement.  She did not know or was aware of the fact that she may have been eligible for any benefits.

Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

The servicemember was notified in November 1978 that he was eligible to participate in the RCSBP.  An election package was mailed to the servicemember’s home address.  There is no evidence that the servicemember made an election prior to the required 90-day suspense.  The servicemember was automatically enrolled  in  Option  A,  Deferred  Election  Until  Age  60 on 26 February 1979.

The member died on 12 June 1995, prior to reaching age 60.

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AIR FORCE EVALUATION:

ARPC/DPS states it is required by Title 10, U.S.C., Section 1448(a)(2)(B) that members wanting to participate in RCSBP must submit their election within 90 days of receipt of the package.  ARPC has no record of receiving an election request from the servicemember.  They further state that unmarried spouses of retirement eligible servicemembers may be entitled to other benefits such as access to the Commissary, Base Exchange and other base services.  The applicant should contact the Entitlements Branch, Tricare and Veterans Administration (VA) for information regarding her eligibility for benefits.  In view of the above, they recommend denying the 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:

A complete copy of the Air Force evaluation was forwarded to the applicant on 2 January 2003, for review and response.  As of this date, no response has been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA has reviewed the case, recommended denial on the basis that the servicemember’s participation in RCSBP was voluntary and there was no statutory requirement for spousal notification.

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

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant’s daughter, in a letter dated 19 August 2003, informed this office the applicant died on 26 January 2003.  She also provided a copy of her father’s last will and testament showing her father left everything to her mother and that this should show that her father wanted her mother to receive all entitlements to which he would have been entitled.

The daughter further states that based on the advisory opinions, and realizing that others in similar circumstances have been denied benefits, this is a issue that should be reviewed at the state and federal government level (Exhibit G).

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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. After thoroughly reviewing the evidence of record, we are not persuaded to change the servicemember's records to reflect that he elected coverage under the RCSBP.  The servicemember was notified of his eligibility to participate in the RCSBP and failed to make an election.  Furthermore, the information contained in the initial election package clearly indicated that the servicemember had 90 days from the date of receipt of the election package to return the completed election form to ARPC, in accordance with the governing statute.  It is the responsibility of the servicemember to submit the election form within the time constraints allowed.  At the time the servicemember was eligible to elect coverage there was no requirement, either by policy or statute to notify a spouse if the servicemember made no election for coverage.  Therefore, we agree with the recommendation of the Air Force and adopt the rational expressed as the basis for our conclusion that the applicant failed to sustain her burden of establishing the existence of either an error or an injustice warranting favorable action on her request.
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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 BC-2002-03589 in Executive Session on 30 September 2003, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 5 Nov 02, w/atchs.
	Exhibit B.	Master Personnel Records.
	Exhibit C.	Letter, HQ ARPC/DPS, dated 2 Jan 03.
	Exhibit D.	Letter, SAF/MRBR, dated 10 Jan 03.
	Exhibit E.	Letter, HQ USAF/JAA, dated 17 Jul 03.
	Exhibit F.	Letter, AFBCMR, dated 8 Aug 03.
	Exhibit G.	Letter, Applicant’s Daughter’s Response,
				dated 19 Aug 03.