RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00470

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

He be disenrolled from the Survivor Benefit Plan (SBP) and be reimbursed all SBP payments deducted from his retired pay.   

APPLICANT’S CONTENTIONS

He made a timely election not to participate in the Reserve Component SBP (RCSBP); however, SBP premiums are now being deducted from his retired pay.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force staff sergeant (E-5).

On 9 December 2004, 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 60 days.  The letter included an attachment with information on RCSBP and instructions to reply within 90 days of receipt.  

On 3 September 2004, according to Reserve Order EK-7612, dated 20 September 2004, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List.  

On 5 February 2005, according to ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, dated 11 February 2005, the applicant elected Option A, Decline to Make an Election until Age 60, and his spouse concurred with the decision.

On 11 February 2005, according to PS Form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 26 December 2019, according to DD Form 2656, Data for Payment of Retired Personnel, the applicant elected Option A, Previously declined to make an election until eligible to receive retired pay, and Option G, I elect not to participate in SBP, and his spouse concurred with the decision.  
 
On 1 April 2020, according to Reserve Order EL-2541, dated 19 February 2020, 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

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.”  

AIR FORCE EVALUATION

ARPC/DPTT recommends granting the application. RCSBP extends eligibility of the 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 a member.  Members of the Air Force Reserve and Air National Guard are sent a certified letter of their eligibility for RCSBP and an explanation of the program and guidance on making elections.

Prior to 1 January 2001, a member was only enrolled when they elected to do so within 90 days of acknowledging receipt of the PS Form 3811. The applicant completed 20 satisfactory years on 1 September 2004, and received notification of RCSBP eligibility and election materials on 5 February 2005. The applicant returned ARPC Form 123, with his desired election, within the 90-day timeframe prescribed by law. The applicant, with spouse concurrence, elected Option A. Spousal concurrence is required if the member declines coverage, elects deferred coverage, elects coverage for spouse at less than the maximum level or elects coverage for a dependent child, but not for the spouse. On 26 December 2019, in conjunction with applying for retired pay, the applicant completed DD Form 2656.  The applicant, with spouse concurrence, elected not to participate in SBP.

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 12 April 2021 for comment (Exhibit D), 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 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 substantiates the applicant’s contentions.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a. He elected Option A, Previously declined to make an election until eligible to receive retired pay, for the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of his Notification of Eligibility and his spouse concurred with the decision. 
	
	b. He be authorized full reimbursement of all SBP premiums withheld from his retired pay.

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-2021-00470 in Executive Session on 22 July 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 November 2020.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTS, dated 12 April 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 12 April 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.