RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02805

XXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES 

APPLICANT’S REQUEST

His election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically, to add current spouse coverage. 

APPLICANT’S CONTENTIONS

He was unaware he only had one year from the date of his second marriage to elect an RCSBP annuity.  He retired on 12 Jul 18, but did not receive any retirement pay until Apr 19, when he finally received back pay and a statement explaining his benefits.  This is when he first learned the spousal premium was not being deducted from his retired pay.  The amount being deducted was $11.23 and it should have been around $73.00 for spouse benefits.  He immediately contacted the Defense Finance and Accounting Service (DFAS) and was passed between DFAS and Air Force Personnel Center for months.  He finally received an answer months ago when he was informed if he wanted the annuity for his spouse, he should have elected it no later than one year after his marriage in 2015.  He was absolutely stunned.  How was he supposed to know of this rule and deadline?  Department of Defense Instruction (DoDI) 1332.42, Survivor Benefit Plan, states that, “the member and the spouse should have sufficient knowledge of the Program to make an informed decision.”  Neither he nor his wife had sufficient knowledge of this rule.  

He was unjustly denied because of his lack of knowledge and understanding on this issue, the information for which should have been supplied to him by the Air Force Reserve.  He provided documents that show the Air Force Reserve did not meet its obligation to educate him on the ins-and-outs of the RCSBP, so he did not have sufficient knowledge to make an informed decision.

He also provided multiple affidavits from military personnel stating they had not been briefed on the RCSBP either, as well as marriage checklists from military websites that fail to mention RCSBP for new spouses, in support of his contention that DoDI 1332.42 requirements are not being met.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve senior master sergeant (E-8), receiving retired pay.

On 2 Jan 07, according to a Divorce Decree, the applicant and his former spouse were divorced.  At the time of the divorce, the applicant and his former spouse had three children.

On 6 Oct 08, ARPC/DPPR 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 60 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 31 Dec 08, according to PS Form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 18 Nov 15, according to DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, US Code, Section 1552, and ARPC/DPTT advisory, dated 11 Mar 22, the applicant married his current spouse.

On 13 Nov 17, according to DD Form 2656, Data for Payment of Retired Personnel, the applicant elected Spouse Only coverage, based upon full gross pay.  

On 12 Jul 18, according to Reserve Order XXXXX, dated 11 Jul 18, 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 advisories at Exhibits C and E.

APPLICABLE AUTHORITY

10 U.S.C. § 1448(a)(2)(B).  “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.”  

DoD 7000.14-R, Financial Management Regulation, Vol 7B, Chapter 540401. “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 January 1, 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.” 

DoDI 1332.42, Survivor Benefit Plan, paragraph 4.4. Making or Changing an Election After Retirement or NOE.

d. Marriage After Retirement or NOE When There Was Not an Eligible Spouse or Former Spouse When Initially Electing SBP or RC-SBP Coverage. 

(1) A covered participant who did not have a spouse or former spouse when he or she was initially eligible to make an election to participate in SBP or RC-SBP, who later marries, may elect within 1 year of marriage to cover the new spouse (note that coverage is not automatic). 

(a) If there is no existing SBP or RC-SBP beneficiary, the member may elect to cover the new spouse effective as of the date of the first anniversary of the marriage, with costs accruing as of the first anniversary of the marriage.

(2) The election may be made by submitting a signed, written election on the DD Form 2656-6 that is received by the Secretary concerned within the 1-year period immediately after marrying the spouse.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  The applicant did not make a new election within the 12-month timeframe following remarriage prescribed by law.  All reserve component service members who are eligible to participate in RCSBP, but who fail to make an election in the prescribed time will, by law, automatically have full, immediate RCSBP coverage for the dependent spouse and/or children.  

On 16 Jul 08, the applicant completed 20 years satisfactory service.  On 31 Dec 08, he received notification of RCSBP eligibility and election materials, and signed the PS Form 3811 to confirm receipt of the RCSBP Eligibility Notification.  The applicant did not return the documentation with his desired election within the 90-day timeframe prescribed by law, and was automatically enrolled based on his eligible beneficiaries, which resulted in Option C, provide an immediate survivor annuity on the day after death for child only, effective 1 Apr 09.  

A covered participant who did not have a spouse, or a court order to provide former spouse coverage, when they were initially eligible to make an election to participate in RCSBP, who later remarries, may elect within one year of marriage to cover their new spouse.  On 18 Nov 15, the applicant married his current spouse.  On 13 Nov 17, in preparation for commencement of retired pay, the applicant completed the DD Form 2656 in conjunction with his retirement application, electing coverage for his spouse.

Per Title 10, U.S.C., Subsection 1448(a)(5)(B), “Manner and time of election. Such 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.”

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 Mar 22 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

ARPC/DPTT provided an amended advisory opinion, correcting the reference cited and minor administrative errors.  The recommendation remains unchanged.

The complete amended advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Apr 22 for comment (Exhibit F), but has received no response.

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.  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 applicant failed to elect coverage for his new spouse within the one-year time period prescribed by DoDI 1332.42.  Therefore, the Board 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 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-2021-02805 in Executive Session on 19 May 22:

, 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 30 Jul 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 11 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Mar 22.
Exhibit E:	Advisory, ARPC/DPTT, dated 6 Apr 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 6 Apr 22.

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.