RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01914
		INDEX NUMBER:  137.01

		COUNSEL:  
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

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APPLICANT CONTENDS THAT:

She was not afforded spousal notification of her late husband’s deferment election under the Survivor Benefit Plan (SBP) law of 1972.

In support of her request, applicant provided a statement from her attorney, a copy of her late husband’s Certificate of Death, and various documents pertaining to the former member’s discharge.

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

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STATEMENT OF FACTS:

The former member became eligible to participate in the RCSBP after completing 20 satisfactory years of service.  The election package, sent by certified mail, was signed for on 18 Oct 93.  There is no evidence he made an election at that time.  At the end of the 90-day suspense, he was automatically enrolled in Option A, Deferred Election until Age 60, 15 Jan 94.

The former member remained eligible to elect coverage under RCSBP upon reaching age 60, but he passed away prior to reaching age 60.

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and recommends denial.  No injustice has occurred, the former member neglected to elect coverage when he was eligible.  

Title 10, U.S.C., Section 1448 (10 USC 1448), Second Session 1992, states, a person who does not elect to participate in the Plan before the end of the 90-day period remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph 1(A).

During the 1 Mar 99 to 29 Feb 00 SBP open enrollment season, members who had made no election or who had elected less than full coverage for their spouses were able to change their election to add or increase coverage.  A package was sent to the former member (at the applicant’s current address); however, there is no evidence that he made an election at that time.

The applicant states she was not afforded spousal notification of her husband’s deferment election under the SBP law of 1972.  However, 10 USC 1448, Second Session 1992, which refers to reserve component survivor benefit plan annuity, (the title which the member fell under during his retirement eligibility) states:  (3)(B) “A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the person’s spouse elect; (i) to provide an annuity for the person’s spouse at less than the maximum level; or (ii) to provide an annuity for a dependent child but not for the person’s spouse.”  10 USC 1448 does not state the United States Air Force must notify the spouse whenever; (a) the member makes an election or (b) an automatic election is made for the member.  The only time the spouse is notified is when the military member elects the annuity to be; (a) less than maximum coverage or; (b) is being left to a dependent child and not the spouse.

In 2001, Title 10 USC 1448 enacted new changes for reserve component members.  However, these changes do not retroactively affect previous set laws.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 23 Jul 04, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days.  To date, a reply has not been received by this office (Exhibit C).

On 7 Oct 04, a copy of the Air Force evaluation was data faxed to applicant’s counsel.  To date, no response has been received (Exhibit C).

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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.  The former member had two opportunities to establish survivor coverage in the applicant’s behalf; however, there is no evidence that he made an election to do so.  When the former service member did not submit an election to participate in the RCSBP within the 90-day period required by law, he was automatically enrolled in Option A, Deferred Election until Age 60.  Applicant contends she was not afforded spousal notification of her late husband’s deferred election.  However, the section of law applicable to reserve component members in effect at the time the former member was eligible to participate in the Reserve Component Survivor Benefit Plan did not require spousal notification if the member deferred making an election until age 60.  We therefore 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.  Based on the foregoing, and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in 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 issues 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 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‑2004-01914 in Executive Session on 24 September 2004 and 11 January 2005, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Jun 04, w/atchs.
    Exhibit B.  Letter, ARPC/DPS, dated 21 Jul 04.
    Exhibit C.  Letter, SAF/MRBR, dated 23 Jul 04;
                Letter, AFBCMR, dated 7 Oct 04.