RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01472 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  His Retired Serviceman's Family Protection Plan (RSFPP) coverage be terminated effective the date he enrolled into the Survivor Benefit Plan (SBP), 1 Jan 71.

2.  He be reimbursed for RSFPP premiums paid after 1 Jan 71.

APPLICANT CONTENDS THAT:

He is currently enrolled in both the RSFPP and SBP, child coverage and is “paid up” as of 2008.  In accordance with (IAW) the 2016 National Defense Authorization Act (NDAA), he is allowed to designate the annuity for his disabled child to a Special Needs Trust (SNT); however, legislation does not extend this to the RSFPP.  The RSFPP annuity would jeopardize his child’s federal and state benefits.

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

STATEMENT OF FACTS:

On 1 Jan 71, the applicant retired from the Air Force Reserve after serving 20 years and 1 day of total active service.

On 1 Jan 71, according to Defense Finance and Accounting Service (DFAS), the applicant enrolled in the RSFPP, child coverage for his disabled child.  

On 21 Sep 72, according to Defense Finance and Accounting Service (DFAS), the applicant elected SBP child only coverage and maintained his RSFPP coverage.

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:

DFAS-JFBEB/CL recommends granting the applicant’s request, indicating there is evidence of an error or injustice.  On 19 Dec 14, section 624 of the Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (FY 15 NDAA), Public Law 113-291, amended title 10, U.S. Code, Sections 1448, 1450, and 1455.  This amendment gave military members and retirees the option to direct payment of a SBP annuity for a dependent child to a SNT.  A SNT is a legal instrument specifically designed for the benefit of a person with a disability. In some cases, this may preserve the beneficiary’s eligibility for other federal or state benefits.  The RSFPP statute was not amended to allow for the same kind of election.  The question has been raised as to whether an RSFPP annuity can also be directed to be paid to a SNT.  It does not appear that the RSFPP statute could be interpreted in this manner.

Similar to the SBP statute prior to the amendment for the SNT, the RSFPP statute limits the class of beneficiaries payable an annuity, namely to a spouse and/or child.  The RSFPP statute even goes further because it explicitly limits who can “receive payments” under the statute.  If an RSFPP participant did attempt to direct payment of the RSFPP annuity to a SNT, the SNT, not the child would “receive” the payment.  Thus, it appears that payment to a SNT would be in direct contradiction to the statutory language.  

It is understood that even a small amount of an RSFPP annuity could have a negative impact to a disabled individual’s other federal benefits.  As a result, recommend relief for the applicant.  The premiums paid by the applicant for RSFPP beginning on 1 Jan 71 through the date he elected SBP on 21 Sep 72 cannot be refunded.  However, a refund of RSFPP premiums would become payable from the SBP election date through his attained paid-up status on 1 Oct 08.  The member could then utilize those funds as they see fit for the care of their child.

A complete copy of the DFAS-JFBEB/CL evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 13 Jan 17 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant partial relief.  We note the applicant requests his RSFPP coverage be terminated the date he enrolled into SBP on 1 Jan 71.  However, according to DFAS, the applicant did not elect SBP until 21 Sep 72.  Therefore, we agree with the opinion and recommendation of DFAS-JFBEB/CL and adopt the rationale expressed as the basis for our conclusion the applicant has been the victim of an injustice.  In view of the foregoing, 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 that he withdrew his Retired Serviceman’s Family Protection Plan (RSFPP) effective 21 September 1972.  

The following members of the Board considered AFBCMR Docket Number BC-2016-01472 in Executive Session on 27 Apr 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01472 was considered:

	Exhibit A.  DD Form 149, dated 4 Apr 16.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, DFAS-JFBEB/CL, dated 30 Sep 16.
	Exhibit D.  Letter, AFBCMR, dated 13 Jan 17.

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 that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.