RECORD OF PROCEEDINGS

IN THE MATTER OF:

XXXXXXXXXXXXXXXXX
(SERVICE MEMBER)

XXXXXXXXXXXXX
(APPLICANT)

DOCKET  NUMBER: BC-2016-04559

COUNSEL: XXXXXXXXXXXXXXX

HEARING: YES

APPLICANT REQUESTS THAT:

Her deceased spouse's records be corrected to reflect he elected spouse and child coverage under the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT CONTENDS THAT:

Her deceased spouse was unmarried at the time he retired from the military. The military cannot locate any DD Form 2656-5, RCSBP Election Certificate, that he  signed.

The applicant's initial submission is at Exhibit A, and her subsequent affidavit of marital status indicating no competing interest is at Exhibit F.

STATEMENT OF FACTS:

The applicant is the service member's widow. The service member was a retired Air National Guard master sergeant. He entered the New Hampshire Air National Guard (NHANG) on 20 Dec 90, after serving three years in the Army. He was honorably discharged from the NHANG on 31 Oct 09, with credit for 22 years, 4 months and 6 days of total service for pay. Ifhe had lived, he would have started receiving reserve retired pay in 2028.

On 1 Oct 07, the Retirement and Separation Division of the Air Reserve Personnel Center's Directorate of Personnel Program Management sent the service member a "Notification of Eligibility for Retired Pay at Age 60" (Notification), which included information about the RCSBP. The Military Personnel Data System record for the service member reflects the following information regarding the Notification: "packet returned (undeliverable)."

According to the State of New Hampshire Certificate of Death, the service member died on 3 Oct 15, and was married to the applicant at the time of death. Additionally, the service member and the applicant had twin children on 8 May 2014.

FOR OFFICIAL USE ONLY- PRIVACY ACT OF 1974

On 4 Aug 17, the Board sent a copy of the AFBCMR Marital Status Affidavit to the applicant (Exhibit C). On 21 Dec 17, the applicant provided the completed Marital Status Affidavit, which indicated she was not currently married (Exhibit F).

For more information, see the excerpt of the applicant's record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, indicating that under the provisions of Title 10, United States Code, Subsection 1448(a)(5)(B), "Manner and time of election-(B) such and [sic] 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."

ARPC/DPTT also includes the following statement: "The member was initially eligible to make an RCSBP election on 24 Jun 07, due to 'packet return' and the member not having any eligible dependents at that time Option A 'Defer Making an Election until Age 60' was established. If there is no response, an automatic election is made on the member's behalf."

The complete advisory is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 11 Dec 17 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.	The application was timely filed.

2.	The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.	After thoroughly reviewing all Exhibits, it is the Board's opinion the applicant is the victim of an error and injustice. While the Board notes the comments of ARPC/DPTT indicating relief should be denied, the Board believes a preponderance of the evidence substantiates the applicant's contentions. The letter containing the notification of the service member's responsibilities for making an RCSBP election, and the time limits that applied, was returned as undeliverable. Since the service member did not have eligible dependents at the time, there was no immediate harm in the Air Force proceeding as if the member had knowingly declined coverage. However, the lack of notice became extremely significant later on, when the service member acquired eligible dependents without knowing how to secure coverage for them. Therefore, the Board recommends correcting the applicant's record as indicated below.
1.	

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 the Board's understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the SERVICE MEMBER be corrected to show that (a) on 1 August 2010, one day after his marriage to the applicant, the service member submitted a request to establish RCSBP coverage Option C (Immediate  Annuity),  based  on full  retired  pay, for his newly acquired  spouse  pursuant  to 10
U.S.C. § 1448(a)(5); and (b) on 9 May 2014, one day after the birth of his twin children, the service member submitted a request to add his children to his existing RCSBP coverage pursuant to 10
U.S.C. § 1448(a)(5).

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04559 in Executive Session on 29 Mar 18:

, Panel Chair 
, Member 
, Member
All members voted to correct the record. The panel considered the following: Exhibit A.  DD Form 149, dated 7 Nov 16, w/atchs.
Exhibit B. Documentary evidence, including relevant excerpts from official records. Exhibit C.  Letter, AFBCMR Administrative Operations, dated 4 Aug 17, w/atch.
Exhibit D.  Advisory Opinion, ARPC/DPTT, dated 20 Nov 17, w/atch.
Exhibit E. Letter, AFBCMR Administrative Operations, dated 11 Dec 17, w/atch. Exhibit F.  Affidavit, Applicant, dated 21 Dec 17.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.