RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02540
		INDEX NUMBER: 137.01

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her deceased husband’s record be corrected to reflect she filed a timely claim for her Reserve Component Survivor Benefit Plan (RCSBP) annuity.

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APPLICANT CONTENDS THAT:

She is unjustly being denied her survivor benefits due to a technicality.  The Air Force was notified of her husband’s death, he received a military funeral at sea, the DEERS system updated his record as deceased, the OSGLI awarded her death benefits, and the VA was notified.  

Misleading Air Force correspondence indicated she was not eligible for benefits until her husband’s 60th birthday.  She was not aware her husband had chosen Option C (Immediate Annuity) and still has no documentation to that effect.  The Air Force was negligent in their duty to inform her of her survivor benefits.  The Air Force presently claims they owe her nothing due to a 6-year stipulation in the U.S. Code.  Had she contacted the Air Force less than five months earlier she would have received the entire annuity.  It is unjust and inequitable to deny her the benefits her late husband worked so hard to provide.  She had no knowledge of any benefits due her immediately upon her husband’s death.

In support of her request, applicant provided her personal statement, copies of her husband’s Certificate of Death and various documents pertaining to the former member’s retirement, and a copy of the statute of limitations on time of death reporting.

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

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STATEMENT OF FACTS:

On 2 Feb 88, the former member was notified of his eligibility for retired pay at age 60 and that he was eligible to participate in the RCSBP.  On 28 Mar 88, he executed ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, electing spouse and child coverage, under Option C (Immediate Annuity), based on full retired pay.

The former member’s date of birth is.  He died on     25 Oct 97.  

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AIR FORCE EVALUATION:

HQ ARPC/DPS reviewed this application and recommends denial.  While the applicant claims she was not aware her husband had chosen the immediate annuity option for RCSBP and that she received written correspondence stating she was not eligible for benefits until her husband’s 60th birthday, records indicate the member received an RCSBP package explaining in detail how the RCSBP permits a member to provide a monthly annuity to their designated beneficiaries in the event of their death.  

The applicant notified the entitlements branch of her husband’s death on 12 Feb 04, when her husband would have become eligible for retired pay at age 60.  Since more than six years has elapsed between the member’s death and this application, the petitioner may not be paid an SBP annuity.  This decision is in accordance with Title 31, Chapter 37, Section (1)(A)(b)(1)(a), “A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative.  The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.”  ARPC/DPS does not believe an injustice occurred in this case; the applicant failed to notify their office of her husband’s death.

The complete Air Force evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated her contentions and further noted a statement contained in the letter to her husband notifying him of his eligibility for retired pay at age 60; i.e., “…eligibility for retired pay may not be denied or revoked on the basis of any error, ….”

Applicant’s complete response 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After careful review of the applicant’s complete submission, we believe there may have been some confusion as to when the applicant believed she could apply for her survivor annuity.  Since the correspondence to the former service member indicated he was entitled to Reserve retired pay upon application at age 60, it appears she was under the impression she had to wait until her husband’s 60th birthday, more than six years after his death, before she could apply for her survivor annuity.  Otherwise, we believe she would have filed an application for the annuity immediately following his death in October 1997.  In view of this, we believe it would be an injustice to deny the applicant the survivor benefits her husband had elected for her.  We therefore conclude that any doubt should be resolved in the applicant’s favor and recommend that the records be corrected as indicated below.
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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 10 December 1997, his widow, xxxxxxxxxxxxxxxxx, submitted a claim for a survivor benefit annuity.
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The following members of the Board considered AFBCMR Docket Number BC-2004-02540 in Executive Session on 2 December 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 9 Aug 04, w/atchs.
     Exhibit B.  Letter, ARPC/DPS, dated 9 Sep 04, w/atchs.
     Exhibit C.  Letter, SAF/MRBR, dated 10 Sep 04.
     Exhibit D.  Letter, Applicant, dated 29 Sep 04, w/atchs.

AFBCMR BC-2004-02540

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to xxxxxxxxxx, xxx-xx-xxxx, be corrected to show that on 10 December 1997, his widow, xxxxxxxxxxxxx, submitted a claim for a survivor benefit annuity.