RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02049
		INDEX CODE:  137.01, 137.04
		COUNSEL:  
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His Reserve Component Survivor Benefit Plan (RCSBP) package be corrected to reflect he selected Option C (Immediate coverage for spouse).

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APPLICANT CONTENDS THAT:

The record is in error and unjust because the default provisions of the law resulted in the election of Option A (Deferred election until age 60) and thereby divesting his spouse of potential benefits if he dies before reaching age 60.

In support of his request, the applicant provided a personal declaration and a brief from his attorney.

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

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STATEMENT OF FACTS:

The applicant currently serves in the Air Force Reserves in the grade of Colonel.  He was eligibile to participate in the RCSBP on 1 June 1999 when he was notified of completing 20 years satisfactory service.  The election package was sent by certified mail to his address and signed for by his spouse on 5 October 1999.  There is no evidence he made an election at that time.  At the end of his 90-day suspense the applicant was automatically enrolled in Option A, “Deferred election until age 60.”

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed applicant’s request and recommends denial.  The RCSBP package sent to the applicant had instructions to contact the Entitlements Branch if he had any questions.  The applicant did not respond to the election package, which resulted in his election default to Option A.  The evidence provided does not indicate any injustice has occurred.

The DPS evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s attorney states that the core issue is whether or not the applicant received the entitlements package setting forth the options available to him under the RCSBP.  He states that the evidence demonstrates that he did not receive the package and therefore never made an election of benefits.  Because the applicant never received the package, any default provision of the RCSBP “deeming” his election to be Option A (no survivor benefits paid if he dies before the age of 60) is both erroneous and unjust and divests his spouse to her right to survivor benefits.  

He also declares that the advisory opinion states that the applicant’s wife signed for the receipt of the package on 10 May 1999.  The date is clearly in error because it would be a factual impossibility for the election package to be received and signed for prior to when the package was sent.  

This error was evidently the result of the advisory opinion writer mis-reading the return receipt card, which clearly reflects that the package was signed for on 10-5-99, which is 5 October 1999.  

The issue in this case, which the advisory opinion writer neglects to even address, is whether the applicant ever received the election package.  He believes this is the critical error in the advisory opinion analysis.  The only evidence in the record in this case is that the applicant never received the election package.  Obviously, if the applicant never received the election package, he was never in a position to make an election of benefits.  The applicant is not claiming that he was not properly counseled.  He has stated under oath that he never received the election package.  Absent receipt of the election package, there was no counseling or any picture, clear or otherwise, of the benefits that he and his survivors were eligible for.

In the applicant’s brief, both the prior and current version of the RCSBP are discussed, as well as the Survivor Benefit Plan that applies to military members.  The variations on plan eligibility and default provisions among these plans are discussed in order to demonstrate the inherent injustice in applying the default provisions of the RCSBP under the facts of this case.  The point is not that the applicant was entitled to the benefits or counseling under other versions of the SBP, but that the courts and regulators (including the Air Force) and ultimately Congress, have all recognized the inherent injustice in divesting a spouse of survivor benefits without full knowledge, consent and counseling.  In this case, because the applicant never received the entitlements package, neither he nor his spouse ever received any counseling about the available benefit options.

His complete submission, with attachments, is 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 an error or injustice.  In this respect, we note that the Air Force, in accordance with established procedures, sent the applicant an election package by certified mail to his address, which was signed for by the applicant’s wife on 5 October 1999.  While it is unfortunate that the applicant failed to make an election prior to the 90-day suspense, we find no error on the part of the Air Force in regards to the notification, or the applicant’s election by default to Option A.  We do not believe that based on the existing circumstances that the applicant has been the victim of an error or an injustice.  It should be noted that applicant remains eligible to make an election upon reaching age 60.  Therefore, in the absence of evidence to the contrary, 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 an material error or an 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 Docket Number BC-2003-02049 in Executive Session on 27 January 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 29 May 03, w/atchs.
	Exhibit B. Letter, HQ ARPC/DPS, dated 1 Jul 03, w/atchs.
	Exhibit C.	Letter, SAF/MRBC, dated 21 Oct 03/atchs.
	Exhibit D. Letter, Applicant’s Attorney, undated, w/atchs.