RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02668

   						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His spouse and step-son be added to his Reserve Component Survivor Benefit Program (RCSBP) as beneficiaries.

APPLICANT CONTENDS THAT:

Upon his retirement from the Air National Guard (ANG) he was single with a minor child.  His child is now an adult, and he has remarried.  When he remarried, the ANG Retirement Office told him he had to wait until he started drawing retirement pay before he could add his new dependents to RCSBP as beneficiaries.  It turns out that was not true.  If he had been advised correctly he would have added his dependents to RCSBP right after his marriage as was required.  

The applicant’s complete submission, with attachment, is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the Air National Guard in the grade of Technical Sergeant during the matter under review.

Under Reserve Order EK-4485, dated 30 May 00, the applicant was placed on the Reserve Retired List effective 1 May 00, awaiting eligibility to receive retired pay upon attainment of age 60 on 20 Jun 18.  

According to the documentation provided by the applicant, he was married on 17 Dec 05.  

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 C.    

AIR FORCE EVALUATION:

AFPC/DPTTT recommends denial indicating there is no evidence of an error or an injustice.  In accordance with Title 10, United States Code (USC) Subsection 1448(a)(5)(b), “Manner and time of election.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.”  The applicant initially elected RCSBP Option C, “Immediate Annuity” for “Child-Only”, effective 1 Dec 99.  On 17 Dec 05, he married.  Since there is no record of the applicant’s marital status change within the required time frame, by law he is not eligible to change his RCSBP election.  The applicant states he was told by the ANG Readiness Center he would not be able to add his new spouse and step-child to his RCSBP until he started drawing retirement pay.  If the decision is to grant the relief sought, the record should be corrected to reflect the member elected Option C, “Immediate Annuity for Spouse and Child”, effective the date of marriage, 17 Dec 05.

A complete copy of the AFPC/DPTTT evaluation 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 Oct 15 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed.  While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely.  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 an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  While we note the comments of AFPC/DPTTT indicating relief should be denied because there is no record of the applicant’s marital status change within the required time frame, we believe a preponderance of the evidence substantiates corrective action is warranted.  In this respect, we note the applicant’s contention he was miscounseled by the Air National Guard (ANG) Readiness Center that he would not be allowed to change his RCSBP beneficiaries until the date he started drawing retired pay.  Given the frequent confusion the Board observes concerning the RCSBP Program, the Board feels it is more likely than not he was simply miscounseled rather than failed to take the opportunity to obtain such a valuable benefit for his new dependents.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show on 17 December 2005, he elected Reserve Component Survivor Benefit Program Option C, “Immediate Annuity for Spouse and Child.”  

The following members of the Board considered AFBCMR Docket Number BC-2015-02668 in Executive Session on 11 May 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

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

	Exhibit A.  DD Form 149, dated 8 May 15, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPTTT, dated 21 Jul 15, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 5 Oct 15.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.