RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00178
		INDEX NUMBER:  137.00

		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased brother’s records be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with an election of Insurable Interest, naming her as the beneficiary.
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APPLICANT CONTENDS THAT:

The DD Form 2656, Data for Payment of Retired Personnel, her brother signed on 26 May 02, was incomplete due to his advanced age and poor health and the fact he received no counseling from the Air Force or any other branch of the military service.  

He clearly wanted her to receive an annuity under the RCSBP.

In support of her request, applicant provided a copy of her late brother’s unwitnessed DD Form 2656, dated 26 May 02, and a copy of his Certificate of Death.

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

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STATEMENT OF FACTS:

On 28 Sep 79, the former member executed DD Form 1883, Survivor Benefit Plan Election Certificate, electing no coverage under Option A (Defer).  He indicated he was not married at that time and did not have dependent children.

The former member was assigned to the Retired Reserve Section and placed on the USAF Reserve Retired List effective 9 Nov 85, and was eligible for retired pay at age 60 (26 Oct 89).

The member died on 12 Dec 02.

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and recommends denial, stating, in part, that on 28 Sep 79, the member was eligible to participate in the RCSBP; he made an election of Option A (Defer).  The applicant states her brother was not counseled on his RCSBP benefits; however, the initial RCSBP package sent to the former member clearly explained the program.

The Defense Finance and Accounting Services in Cleveland, Ohio, confirmed that, on 26 October 1989, the former member’s 60th birthday, he did not make an election.  Due to the fact he was not married at the time of his eligibility he had no coverage.  Member was drawing retired pay for over ten years prior to his death.

A complete copy of the evaluation, with attachments, is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation and states, in part, there is no option under Section 9c that could be taken to mean “Irrevocably Waived,” nor does any reasonable definition of the word “Defer” preclude subsequent action.  Since the member’s retirement date was more than ten years after the date the certificate was signed, it seems harsh to penalize him for electing on 28 Sep 79 to “Defer” making an SBP election until some unspecified future date, especially when the option to “Defer” was offered on the SBP Election Certificate and his retirement date was, at the time, in the distant future.

Counsel also states he feels his client’s brother was not properly counseled regarding his RCSBP benefits, and that appropriate counseling must occur when it comes to matters involving substantial benefits to military personnel.  It is difficult to imagine why, as a commissioned officer, the member would have deliberately and irrevocably elected on 28 Sep 79, or even 26 Oct 89, to forfeit his right to arrange survivor benefits.  

Applicant’s counsel also provided copies of the member’s ARPC Form 0‑69 (Application for Retired Pay), and DD Form 2656, which were signed by the member on 26 May 02.

Counsel’s 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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The former service member had two opportunities to establish survivor coverage for the applicant under Air Force-sponsored programs.  After completing the required years of federal service to be eligible for retired pay at age 60, the former member was eligible to participate in the Reserve Component Survivor Benefit Plan (RCSBP).  On 28 September 1979, he elected not to participate in the program under Option A (Defer).  An explanation of Option A was contained on the reserve side of his election form.  Specifically, under Option A, the member declined to make an election at that time, but remained eligible to make an election for coverage at age 60.  There is no evidence he submitted an election to establish survivor coverage for the applicant when he reached age 60 and became entitled to Reserve retired pay.  Furthermore, this Board’s authority is limited to what is allowed by the existing law.  In this respect, the laws governing the RCSBP do not provide for retirees to arbitrarily enroll in the program, except during congressionally authorized open enrollment periods.  Therefore, the former member was not eligible to make an election on 26 May 2002.  Based on the foregoing, and in the absence of evidence to the contrary, we find no basis upon which to recommend favorable action on the applicant’s 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 Docket Number   BC‑2004-00178 in Executive Session on 20 July 2004, under the provisions of AFI 36‑2603:
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Jan 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPS, dated 19 Feb 04, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 20 Feb 04.
    Exhibit D.  Letter, Counsel, dated 7 Apr 04.

                                   Panel Chair