RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-03444

	COUNSEL:  

	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically, to convert his child only coverage to spouse only coverage.

APPLICANT’S CONTENTIONS

His wife was not designated as his RCSBP beneficiary due to an administrative error.  

In July 2013, he and his wife went to the military personnel flight (MPF) to enroll her as his spouse for all benefits, to include survivor benefits.  They believed they had completed all the necessary paperwork to enroll her as his beneficiary for all military benefits.  He became aware that his wife was not the beneficiary for SBP in November 2016, when he received his Retiree Account Statements reflecting his daughter as the SBP beneficiary.  His daughter had been his only dependent, and had been correctly designated as his SBP beneficiary; however, he believed his daughter’s eligibility ended in 2010 by law when she reached her 22nd birthday, leaving him without dependents or beneficiaries.  The MPF technician did not advise them that they needed to complete a DD Form 2656, Data for Payment of Retired Personnel, to enroll his wife as his SBP beneficiary.

He also found out that when he completed the DD Form 2656 to begin receiving retired pay he should not have used Section IX of the form to designate his beneficiary.  He was advised this section of the form is almost exclusively for active duty members.  A retiring reservist would only complete Section IX in the rare circumstance of having qualified for immediate active duty retirement or having previously declined to participate in SBP.

He believes his situation was further complicated due to his qualifying for Reduced Age Retirement Pay.  Under this program he was eligible to begin receiving retired pay at age 54 versus age 60, when most reservist are able to draw retirement pay.  He believes he was inadvertently advised by ARPC as a qualifying for immediate active duty retirement, rather than for reduced age retirement pay.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is retired Air Force colonel (O-6).

On 24 September 2004, ARPC/DPPR sent the applicant a Notification of Eligibility (20-year letter), informing him that he had completed the required years under provisions of Title 10 United States Code, Section 12731, and entitled to retired pay upon application prior to age 60.  In addition, he was eligible to participate in the RCSBP and should receive detailed RCSBP information by certified mail within 60 days.  

On 16 February 2005, according to PS form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 6 April 2013, according to a Certificate of Marriage, provided by the applicant, he married his current spouse.

On 10 March 2016, the applicant completed DD Form 2656 and elected SBP coverage for spouse only, based on full retired pay.  T 
 
On 27 July 2016, according to Reserve Order EL-2575, dated 15 March 2016, the applicant was authorized retired pay and placed on the USAF Retired List.

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

APPLICABLE AUTHORITY

DoD 7000.14-R, Financial Management Regulation, Chapter 54: Reserve Component Survivor Benefit Plan.  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 January 2001, 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.  

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. 

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.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  Per Title 10, U.S.C., Subsection 1448(b)(3)(A), 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.”

On or about 16 February 2005, the applicant received a letter from the Air Reserve Personnel Center (ARPC) Retirement Service Team that provided notification of eligibility for retired pay  at age 60 and eligibility to participate in RCSBP.  The information package included a note, “If you have a life changing event in the future (marriage, divorce, birth of a child, death), you have one year from the date of the event to contact ARPC to make a change to your RCSBP election.”  The applicant did not return the documentation with his desired election within the 90-day timeframe prescribed by law; therefore, he was automatically enrolled under Option Child only) effective 18 May 2005.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 5 September 2019 for comment (Exhibit D), and on 28 September 2019, the applicant requested his case be administratively closed.  On 4 October 2019, Board staff notified the applicant his case has been administratively closed and processing will resume upon his request.

On 16 March 2020, the applicant requested his case be reopened.  In his response, he states the ARPC/DPTT evaluation contains several factual inaccuracies and their recommendation to deny is based on a misapplication of the statue.  The advisory stated he received the notification letter on or about 16 February 2005.  The date is wrong, the letter was dated and sent more than four months earlier on 24 September 2004. ARPC/DPTSS also stated that the information package included a note “if you have a life changing event in the future (marriage, divorce, birth of a child, death), you have one year from the date of the event to contact ARPC to make a change to your RCSBP election.”  That statement was not in the information package he received.  It was also noted that he did not return the documentation with his desired election within the 90-day timeframe prescribed by law and was automatically enrolled under Option C, child only, effective 18 May 2005.  This sentence suggests that automatic enrollment of his daughter occurred due to negligence, or failure to comply with a legal requirement on his part.  This is not true, he accepted automatic enrollment under the advisement of ARPC.

ARPC/DPTT’s recommendation to deny seems based on misapplication of Title 10 U.S.C. Subsection 1448(b)(3(A).  This subsection specifically addresses election coverage for a “Former Spouse,” not a new spouse, as in his case.  Further, Title 10 U.S.C. Subsection 1448(b)(3(A) does not contain the instruction quoted in the memo.  Rather, those words seem appropriated from Subsection 1448(a)(5)(B), which addresses “Participation by person marrying after retirement, not before retirement.  Title 10 U.S.C. – Armed Forces – Subchapter II:  Survivor Benefit Plan does not provided guidance for a participating service member with child only coverage who acquires a new spouse before retirement.  This guidance affects reserve members and not regular active duty members.  The difference exists due to a variation of when beneficiary election is made.  Reservists make an SBP beneficiary election when they complete 20 years of creditable service, while regular active duty members make an election at the time of their actual retirement.

He humbly requests the Board adopt the proposed correction by ARPC/DPTT

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  According to  DoD 7000.14-R, Financial Management Regulation, Chapter 54: Reserve Component Survivor Benefit Plan, any Reserve member who later marries or acquires a dependent child, may elect to participate in the RCSBP, if the election is completed within one year of acquiring a spouse or dependent child.  The applicant’s response to the advisory opinion is duly noted; however, although he alleges he was never briefed on the requirement to make an RCSBP election within one year of a life changing event, based upon the presumption of regularity in the conduct of governmental affairs, and without substantial evidence to the contrary, the Board must assume the applicant was properly briefed about the requirements of the program.  As noted above, the applicant did inform ARPC of his marriage within the allotted time frame.  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-2019-03444 in Executive Session on 17 December 2020:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 June 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, ARPC/DPTT, dated 29 July 2019.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 5 September 2019.
Exhibit E:	Letter, Applicant, dated 28 September 2019.
Exhibit F:	Letter, SAF/MRBC, dated 4 October 2019.
Exhibit G:	Applicant’s Response, w/atchs, dated 16 March 2020

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