RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02063 COUNSEL: NONE (DECEASED FORMER SERVICE MEMBER) HEARING DESIRED: NO (APPLICANT) APPLICANT REQUESTS THAT: The deceased service member’s records be corrected to reflect he elected Option B (Deferred Annuity) rather than Option A (Decline to make an Election until Age 60) under the Reserve Component Survivor Benefit Plan (RCSBP). APPLICANT CONTENDS THAT: Her husband told her he had elected SBP and that she would receive the annuity at his 60th birthday. She applied for the annuity and was informed her husband did not respond in a timely manner and was automatically enrolled under the option to defer the election until age 60. She believes her husband was not adequately briefed on RCSBP. She questions the premise that the failure to reply in 1995 resulted in an automatic deferral until age 60, while such an action today would result in automatic enrollment for immediate coverage. This is an injustice. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 21 Apr 95, the service member was physically disqualified for military duty due to migraine headaches. On 18 May 95, the applicant was notified that discharge action was being initiated based on his being physically disqualified for worldwide duty and that he qualified for early reserve retirement. On 1 Jun 95, the service member requested to be transferred to the retired reserve. On 9 Jun 95, the service member was released from his reserve assignment and transferred to the retired reserve to await retired pay at age 60. On 24 Aug 95, the service member was notified of his eligibility to receive reserve retired pay at age 60 and to participate in RCSBP. On 20 Jan 01, the service member passed away. On 20 May 14, SAF/MRBR notified the applicant that she needed to complete a signed notarized marital status affidavit (Exhibit C). As of this date, no response has been received by this office. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D. AIR FORCE EVALUATION: DFAS-JFBE/CL recommends denial indicating there is no evidence of an error or an injustice. According to the Air Reserve Personnel Center (ARPC), the service member was released from the Air Force Reserve in 1995 and sent his eligibility letter. The service member did not respond within the 90 day requirement and his RCSBP automatically defaulted to Option A (decline to make an election until age 60). The RCSBP annuity is not payable for a service member who was enrolled under Option A and died before age 60. Beginning on 1 Jan 01, service members who failed to make an RCSBP election within 90 days after receiving their eligibility letter are automatically enrolled in under Option C (immediate annuity on day after date of death) for his dependents. Due to the service member receiving his eligibility letter prior to effective date for automatic SBP coverage, the requested relief cannot be granted by law. A complete copy of the DFAS-JFBE/CL evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: While the board claims her husband never made an RCSBP election, she claims he completed and sent in all the required forms. The applicant is requesting confirmation the RCSBP paperwork was sent via certified mail to prove her husband received it between 1995 or some date 60 days before his death. She can confirm that all paperwork sent to her husband after his release were completed and returned. While the board states the automatic RCSBP election became effective 1 Jan 01, 20 days before the service member’s death, they cite a regulation dated more than a year after his death. Her husband passed away from a medical condition that was service related. Although he was discharged for medical condition he was not offered a medical evaluation board or a line of duty determination. Therefore, his discharge was invalid and he was involuntarily retired. The applicant is entitled to full benefits from the service member, but has been denied. If proper procedures had been followed, and he received proper medical care, his death may have been prevented and would not appear to be related to negligence by the Air Force. The applicant’s complete response 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends her late spouse completed all the necessary paperwork in order for her to receive the SBP annuity. We took notice of the applicant’s complete submission, to include her rebuttal response in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Although the applicant believes she is entitled to the SBP annuity and questions the facts of the OPR’s evaluation, she has provided no evidence to support her request. We note the presumption of regularity dictates that, absent evidence to the contrary, it is assumed that government officials carry out their duties properly and in good faith and the applicant (not the government) bears the burden of proof in these matters. While the applicant argues that it is unfair that service members who failed to make an RCSBP election within 90 days after receiving their eligibility letter are now automatically enrolled in under Option C (immediate annuity on day after date of death), when the rules that applied to her deceased husband caused his election to be automatically deferred until age 60, we do not find that this argument is sufficient for us to grant relief. In this respect, we note that this change in procedure was brought about by a change in law and this Board has no authority to correct a record in a manner that would violate the law and, other than argument and conjecture, the applicant has presented no evidence whatsoever that an error on the part of the government caused her deceased husband not to act when he had an opportunity to do so. In fact, we note that Congress authorized two open enrollment periods from 1 Oct 00 to 30 Sep 01 and 1 Oct 05 to 30 Sep 06, to allow individuals such as the deceased former member the opportunity to submit an election for SBP coverage, but he did not. There is no evidence the applicant or the service member submitted an election for former spouse coverage during either of the two authorized open enrollment periods. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-02063 in Executive Session on 6 May 15 under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 May 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR, dated 20 May 14, w/atch. Exhibit D. Memorandum, DFAS-JFBE/CL, dated 2 Jun 14. Exhibit E. Letter, SAF/MRBR, dated 4 Aug 14. Exhibit F. Letter, Applicant, dated 25 Aug 14.