RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00389 INDEX CODE: 137.00 XXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her late husband’s records be corrected to show her eligibility to receive benefits under the Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her late husband’s record is in error because at the time of his death, he was eligible for Reserve retirement pursuant to Title 10, United States Code (USC), Section 12731, thereby making his spouse eligible to receive RCSBP effective the date of his death, 19 Oct 09. The Board should find that in the interest of justice she is entitled to the RCSBP. In support of the appeal, the applicant submits extracts from Title 10 USC 12731; a copy of a Records Review Record of Individual Personnel (RIP) reflecting the former member’s Point Service History; a copy of the death certificate, and a letter from the former member’s commander. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: By letter, dated 2 Nov 00, the Air Reserve Personnel Center (ARPC) notified the decedent that he was eligible to participate in the RCSBP. However, he made no election within 90 days and was automatically enrolled in Option A, “Decline to make an election until age 60.” During the RCSBP open enrollment season of 1 Oct 05 through 30 Sep 06, records indicate the former member requested information in regard to open enrollment; however, he did not participate at that time. The member died on 19 Oct 09, while serving in the Air Force Reserve. At the time of his death, he had completed 29 years and 3 months of satisfactory Federal service. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPP recommends denial and states, in part, that while they sympathize with the applicant, by law they cannot change the election. The member was notified, by letter, of his eligibility to participate in the RCSBP in 2000 and that he had 90 days in which to make an election. However, he made no election during this period and by law, he was automatically enrolled in Option A – Decline to make an election until age 60. This election does not entitle the spouse to receive an RCSBP annuity. The applicant is eligible for an ID card and Base Exchange and commissary privileges, since the member was eligible to receive retired pay at age 60. She is also eligible to apply for medical and dental benefits through the TRICARE program, when the former member would have turned age 60, 14 Apr 13. The complete ARPC/DPP evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 5 March 2010 for review and comments, within 30 days. However, as of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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. We took notice of the applicant's complete submission and her late husband’s military records in judging the merits of the case; however, while we sympathize with the applicant, we agree with the opinion and recommendation of the Air Force Reserve office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00389 in Executive Session on 13 October 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Jan 10, w/atchs. Exhibit B. Decedent's Master Personnel Records. Exhibit C. Letter, ARPC/DPP, dated 24 Feb 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 5 Mar 10.