ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-1996-01813

XXXXXXXX	COUNSEL: NONE
	
XXXXXXXX	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her deceased husband’s records show he was eligible for retirement pay at age 60.  The applicant previously sought to change her husband’s election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP).

RESUME OF THE CASE

The decedent is a former Air National Guard technical sergeant (E-6).  He was honorably discharged on 29 Sep 95, due to his death, and credited with 17 years, 6 months and 8 days of active service.  In 1996, the Board considered and denied the applicant’s request for RCSBP.  However, due to the age of the case the documents have been archived and are unavailable.  

In 2008, the applicant requested reconsideration for RCSBP, but provided no new evidence.  The denial letter is at Exhibit A.

On 12 Feb 20, the applicant requested her husband’s records show he was eligible for retired pay at age 60; in essence, seeking the record be corrected to indicate he made a timely and immediate RCSBP election so that she could receive retired pay.  Her husband passed away prior to reaching retirement age.  At the time of his death he was still active in the Air National Guard, and was in the process of filling out retirement paperwork before his death.  As his widow she should receive part of that retirement.

The decedent’s year of birth was 1943, and he would have reached retirement age (age 60) in 2003.  His date of death was on 29 Sep 95.

The support documents provided by the applicant are all dated prior to the 2008 case (1996 or earlier).  However, without the 1996 archived case Board staff are unable to confirm if they were previously provided.

The applicant’s complete submission is at Exhibit B.

APPLICABLE AUTHORITY

“Participants in the plan. The Plan applies to the following persons, who shall be participants in the Plan: … Reserve-component annuity participants.  A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve component retired pay, unless the person elects (with his spouse's concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.”  10 U.S.C.§ 1448(a)(2)(B).

“Any member who is notified of his or her completion of the years of service required for retired pay eligibility for non-regular retirement may elect to participate in RCSBP before the end of the 90-day period. A member who is married or has a dependent child, and who receives notice of eligibility for retired pay, after 1 Jan 01, is automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence, if required) not to participate or to defer the decision or delay coverage before the end of the 90-day period.”  DoD 7000.14-R, Volume 7B, paragraph 540401.

“A member electing to participate must designate an immediate election, a deferred election, or indicate a decision to delay the election until reaching retirement age.  These are described as Options A, B, or C.”  DoD 7000.14-R, Volume 7B, paragraph 540402.

“Any Reserve member who does not have an eligible beneficiary when becoming eligible to participate in the RCSBP, who later marries or acquires a dependent child, may elect to participate in the RCSBP, if the election is completed within 1 year of acquiring a spouse or dependent child.”  DoD 7000.14-R, Volume 7B, paragraph 540404.

“Elections filed during the 90-day period referred to in paragraph 540401 are generally irrevocable unless revoked before the expiration of the 90-day period.”  DoD 7000.14-R, Volume 7B, paragraph 540701.

“In the case of a member electing SBP or RCSBP coverage for a spouse who was not married to the member at the time the member became eligible for retired pay, the surviving spouse must have been married to the member for at least 1 year immediately prior to the member’s death or be the parent of issue by that marriage to be an eligible beneficiary.”  DoD 7000.14-R, Volume 7B, paragraph 430204(A).

“A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the person’s spouse elect (i) not to participate in the Plan; (ii) to designate under subsection (e)(2) the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member’s birth (rather than the day after the date of the member’s death); (iii) to provide an annuity for the person’s spouse at less than the maximum level; or (iv) to provide an annuity for a dependent child but not for the person’s spouse.”  10 U.S.C. § 1448(a)(3)(B).

An election to convert spouse coverage to former spouse coverage, “must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.”  10 U.S.C. § 1448(b)(3)(A)(iii).

If a court has ordered a service member to elect former spouse SBP, then a former spouse can submit his or her own request to DFAS for former spouse SBP coverage.  This is known as a “deemed election request.”  There is a time limit:  “An election may not be deemed to have been made … unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.”  10 U.S.C. § 1450(f)(3)(C).

“The Government does not subsidize the cost of providing RCSBP coverage under the immediate or deferred annuity option, but the members and beneficiaries who potentially will benefit from the coverage share the cost.  The cost to the retiree, known as the Reserve Component Premium, is in the form of an additional deduction from his or her retired pay beyond the Standard Premium.  The RCSBP, unlike SBP, requires a reduction in the survivor annuity.  That reduction, known as the Survivor’s Annuity Premium Deduction, begins when the survivor begins to receive an annuity.  The Reserve Component Premium and the Survivor’s Annuity Premium Deduction increase at the same time and by the same percentage that retired pay increases by cost-of-living adjustments.”  DoD 7000.14-R, Volume 7B, paragraph 5408.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board took notice of the applicant’s complete submission and Air Force guidance in judging the merits of the case, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-1996-01813-3 in Executive Session on 17 Dec 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Denial letter, SAF/MRBC, dated 30 Jul 09.
Exhibit B:	Application, DD Form 149, w/atchs, dated 12 Feb 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding AFBCMR Docket Number BC-1996-01813-3, as required by AFI 36-2603, paragraph 4.11.9.