RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2020-03541

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed from Option A (Decline to make an election until age 60), to Option C (Immediate annuity for spouse only).

APPLICANT’S CONTENTIONS

Since he received his 20-year letter, he has had two life events—a marriage and retirement.  At the time of his 20-year milestone, there was no issue with his selection since he was not married.  The problem first occurred after marriage when he was not informed to change his election to spouse coverage.  After his retirement, he was never notified to change his election.  This is an item that should be included on all personnel in and out processing checklists.  

After he was diagnosed as terminally ill, he began to check all items associated with his estate and discovered the issue with RCSBP.  Obviously, his election was made several years ago since the only recorded attempt where he was notified was made on 27 September 2002.  He respectfully requests a waiver of the 3-year time limit due to him not being notified of his opportunity to select an appropriate option based on his marital status.  Due to his recent terminal diagnosis, he requests a special exception to allow a change to spouse coverage as soon as possible.  This would allow his spouse to collect his pension immediately if he passes before his 60th birthday.      

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve technical sergeant (E-6) awaiting retired pay at age 60.

On 6 September 2002, ARPC/DPTT sent the applicant the standard Notification of Eligibility for retired pay (20-year letter) informing him that he has completed the required years under the provisions of Title 10 United States Code, Section 12731 (10 U.S.C § 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 30 days.  The RCSBP information included instructions to reply within 90 days of receipt.  The letter included an attachment with information on RCSBP and instructions to reply within 90 days of receipt.  

On 27 September 2002, according to PS Form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 12 September 2009, according to a Certificate of Marriage, provided by the applicant, he married his current spouse.

On 1 May 2013, according to Reserve Order EK-26967, dated 26 March 2013, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List.  
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  RCSBP extends eligibility of the Survivor Benefit Program (SBP) to Reserve Component members, who would otherwise be eligible to receive retired pay, except they have not yet reached retirement age.  RCSBP allows members to provide an annuity based on their retired pay, to qualified survivors, upon the death of the member.  

On 1 June 2002, the applicant completed the required years of service, and received notification of RCSBP eligibility and election materials on 27 September 2002.  At the time of notification, the applicant did not have an eligible beneficiary; therefore, the election updated automatically at the end of the 90-day period to Option A, I decline to make an election until age 60.

A service member that is eligible to participate in RCSBP, who did not have a spouse or former spouse when they were initially eligible to make an election to participate in RCSBP, who later marries, may elect within 1 year of marriage to cover the new spouse.  The applicant married his spouse on 12 September 2009, and did not contact ARPC to update the election, or submit a new written election on the DD Form 2656-6, SBP Election Change Certificate, within the 1-year period immediately after marriage.  The applicant will be afforded the opportunity to make an election at retirement age, regardless if that age is before age 60, to participate in SBP as any other member becoming entitled to retired pay.

Based on 10 U.S.C. § 1448, the evidence presented and analysis of the service record, there is no evidence of an error or injustice.  The applicant was properly notified and given the opportunity to provide immediate spouse coverage under the RCSBP, but failed to do so.   

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 24 September 2021 for comment (Exhibit D), 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).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  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-2020-03541 in Executive Session on 28 October 2021:

, 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 18 September 2020.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 15 September 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 September 	2021.

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.