RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02287 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be entitled to benefits under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She and the decedent thought that everything was taken care of when they submitted the required documents for the DD Form 1172, APPLICATION FOR IDENTIFICATION CARD/DEERS ENROLLMENT (ID card) and had their will completed. They presented a copy of the marriage certificate and all other identification required. However, they were not aware that the marital status was not changed. In support of his appeal, the applicant provides copies of the death certificate; marriage certificate; a brief from counsel, and her Military ID Card. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant and the service member were married on 13 Mar 04. Other relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force Reserve. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ THE AIR FORCE EVALUATION: ARPC/DPTT recommends denial, stating, in part, based on the information in the file, the decedent did not request to change his RCSBP coverage within one year of his marriage as required by law Title 10, United States Code (USC) Section 1448. The decedent was notified of his eligibility to participate in the RCSBP on 29 Sep 03 by letter. The election package was sent to his address and signed for by the applicant. However, the decedent made no election during that time and was automatically enrolled in Option A. "Decline to make an election until age 60." He was not married at the time of this election. On 13 Mar 04, he married; however, he did not request to change his RCSBP coverage within one year of his marriage as required by law. This headquarters was not aware of the change in his marital status until the notification of his death, on 26 May 11. The applicant states that on 25 Mar 04, she and the decedent had gone to a Air National Guard post to update their marital status in the Defense Eligibility Enrollment Reporting System (DEERS). Unfortunately the Military Personnel Data System and DEERS do not interchange or merge information. However, the RCSBP package that was sent to the decedent six months prior clearly explained that if the member had any questions, life changing events, or concerns to call this headquarters. We have no record the decedent contacted this headquarters. In view of the fact the decedent was eligible for retired pay at age 60, the applicant is eligible for ID card, Base-Exchange and Commissary privileges and will be eligible to apply for medical and dental benefits through the TRICARE program when the decedent would have turned age 60, on XXXXXXXX. The complete ARPC/DPTT evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel notes that it is clear that the decedent and the applicant attempted to comply with military rules regarding the updating of their military records to reflect the recent marriage, and that they did so by going to the decedent’s appointed post and reporting his marriage, changing his will, and getting his new wife a military ID. The evaluation states that " ... the RCSBP package that was sent to the decedent six months prior to the marriage and clearly explained that if he had any questions, life changing events or concerns to call this headquarters." However, there is no proof of delivery of such documentation, and the decedent was deployed overseas shortly thereafter. It is entirely possible that that package never arrived nor was received by the decedent and that he never knew it was necessary to do more than he had already done. It is their position that the decedent and the applicant did everything they knew to do in order to notify the military of the change in his marital status. Failure to notify Headquarters Air Reserve Personnel Center could only have been at worst a mistake or error on the decedent’s part. There was certainly no fraud or misrepresentation on his or the applicant part. The complete response from counsel, with attachments, is at Exhibit E. ________________________________________________________________ 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 in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the primary basis for our conclusion the applicant has not been the victim of an error or injustice. While we note the actions applicant’s counsel indicates were taken by the applicant and the deceased member after their marriage in 2004, unfortunately none of these actions met the requirements for establishing RCSBP coverage on behalf of the applicant. We further note the applicant signed for the package sent to the now deceased former member notifying him of his eligibility to participate in the RCSBP. Although applicant’s counsel argues the package indicated the deceased member “should receive detailed information on RCSBP by certified mail within 60 days,” and that there is no proof such information was ever sent, we note that HQ ARPC/DPTT indicates the package the applicant signed for clearly explained that if the member had any questions, life changing events, or concerns to call ARPC headquarters. Based on the presumption of regularity in the conduct of government affairs, it is our view the deceased member was properly advised of necessary actions to take. Additionally, the applicant has not provided any evidence of reasonable diligence on her part or the applicant when additional information was not received within 60 days as indicated. While we find the applicant’s circumstances regrettable, we are not persuaded that the failure to properly elect RCSBP coverage for her is due to error on part of the Air Force and that she is the victim of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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. ________________________________________________________________ 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-2011-02287 in Executive Session on 29 March 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Jun 11, w/atchs. Exhibit B. Decedent's Master Personnel Records. Exhibit C. Letter, ARPC/DPTT, dated 28 Jul 11, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 5 Aug 11. Exhibit E. Letter, Counsel, dated 25 Aug 11, w/atchs.