RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04232

XXXXXXXXXX (MEMBER)	COUNSEL: NONE

XXXXXXXXXX (APPLICANT)	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The deceased service member’s record be corrected to show that he elected the Reserve Component Survivor Benefit Plan (RCSBP). 

APPLICANT’S CONTENTIONS

She did not receive any correspondence from the Defense Finance Accounting Service (DFAS) notifying her that she was eligible for SBP coverage during the first year of marriage.  She recently learned that when a married service member retires, his spouse is fully involved in the SBP decision.  She does not understand why the same courtesy was not extended to her.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the surviving spouse of an Air National Guard (ANG) master sergeant (E-7).

Per ARPC 123, Reserve Component Survivor Benefit Plan Election Certificate, dated 8 Nov 00, the former member elected Option A, “Defer election until age 60.”  

On 30 Sep 03, the deceased member was honorably discharged and on 1 Oct 03 he was transferred to the Air Force Reserve Retired List awaiting pay at age 60.

According to the applicant’s affidavit dated 19 Feb 08, the deceased member and his spouse were married.

On 17 Sep 19, the AFBCMR staff sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP-Marital Status Affidavit (Former Spouse); SBP-Marital Status Affidavit (Retiree); SBP-Release of Benefits Affidavit (Current Spouse); SBP-Release of Benefits Affidavit (Arrears of Pay).  See Exhibit C.  

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisory at Exhibit E.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  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 one year of acquiring a spouse or dependent child.  The deceased member made his initial RCSBP election on 8 Jun 00, electing Option A, “Defer election until age 60.”  He later married the applicant on 19 Feb 08.  The former member had one year from the date of marriage to update his election had he wished to provide his retirement annuity to his dependent spouse.  However, he did not establish coverage for his spouse within one year of the marriage date.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 17 Apr 20 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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.  The Board concurs with the rationale and recommendation of ARPC/DPTT and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-04232 in Executive Session on 24 Sep 20:

, 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 14 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: 	Letter, SAF/MRBC, dated 17 Sep 19.
Exhibit D:  Letter, Applicant, w/atchs, dated 19 Nov 19.
Exhibit E:	Advisory opinion, ARPC/DPTT, dated 28 Feb 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 17 Apr 20.

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.