RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00683

XXXXXXXXXXXX	COUNSEL:  NONE
    
XXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED:  NO 

APPLICANT’S REQUEST

Her deceased spouse’s records be corrected to show she made a timely election for Survivor Benefit Plan (SBP) annuity. 

APPLICANT’S CONTENTIONS

She is requesting a waiver to the Barring Act regarding her SBP claim, filed on 21 Feb 20.  The claim was processed by the Air Reserve Personnel Center (ARPC) and forwarded to the Defense Finance and Accounting Service (DFAS); however, DFAS did not receive the claim she filed within the six-year statutory time limit established by Title 31, United States Code, Section 3702 (31 U.S.C. § 3702).  DFAS denied her claim based on the six-year barring statute and instructed her to file with the Air Force Board for Correction of Military Records.  

Her spouse made his original Reserve Component SBP (RCSBP) election on 15 Nov 02 [sic], selecting Option C, Immediate Annuity for Spouse.  On 18 Sep 04, after serving 22 years, her spouse took his own life at their home.  Subsequently, their family decided to move to a different home.  Her spouse passed away before he was eligible to receive his Air Force retirement pension at age 60.  She is requesting the waiver because she was not properly counseled at the time of her spouse’s death regarding RCSBP or the time restrictions on filing a claim.  She was not aware she needed to contact an RCSBP counselor and the Air Force did not advise her that she was eligible to apply for RCSBP.  Unfortunately, she was not aware of this until recently when she contacted an Air Force representative to inquire about potential benefits on the deceased service member’s 60th birth date.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the surviving spouse of an Air Force Reserve senior master sergeant (E-8).  

On 19 Jun 02, ARPC/DPTT sent the deceased service member the standard notification of eligibility for retired pay (20-year letter) informing him that he had completed the required years under the provisions of Title 10 United States Code, Section 12731 (10 U.S.C § 12731), and was 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 12 Nov 02, according to ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, the deceased service member elected Option A, Decline to Make an Election Until Age 60, without obtaining the required spousal concurrence; therefore, he was automatically enrolled based on his eligible beneficiaries, which resulted in the election of Option C, Provide an immediate survivor annuity beginning on the day after death for spouse and children, effective 12 Nov 02.

On XXXXXX, the service member passed away.

On 19 Oct 04, according to Reserve Order XXXXX, the deceased service member had a highest grade held of E-8, with 22 years, 6 months, 17 days service for basic pay.

On 29 Jan 20, according to DD Form 2656-7, Verification for Survivor Annuity, the applicant submitted a claim for annuity under RCSBP.

On 24 Feb 20, according to DFAS memorandum, dated 24 Feb 20, the applicant’s claim for annuity under RCSBP was denied in full, in accordance with the Barring Act, 31 U.S.C. § 3702.

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

APPLICABLE AUTHORITY

31 U.S.C. § 3702, Authority to Settle Claims. The Secretary of Defense shall settle claims involving uniformed service members’ pay, allowances, travel, transportation, and payments for unused accrued leave, retired pay, and survivor benefits.  A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.

AIR FORCE EVALUATION

ARPC/DPTT recommends granting the application.  Based upon the evidence presented, and analysis of service records, there is evidence of an error on the part of the Air Force.  In accordance with Department of Defense Instruction 1332.42, Survivor Benefit Plan, the Secretary concerned will pay an annuity to an eligible survivor, who was an eligible dependent of the covered participant, commencing on the day immediately following the death of a covered participant.  The eligible dependent would receive equal to 55 percent of the retired pay, of which the deceased member would have been entitled to on the day the member died, computed on the member’s years of service, in accordance with 10 U.S.C § 12733. 

On 1 Mar 02, the deceased service member completed the required years of service under the provisions of 10 U.S.C § 12731, to be entitled to retired pay upon attaining age 60.  Due to the absence of a PS Form 3811, Domestic Return Receipt, in the deceased service member’s personnel record, ARPC cannot confirm the date of notification of eligibility to participate in RCSBP or that election materials were received; however, ARPC accepted his ARPC Form 123, with his desired election, on 15 Nov 02.

The deceased service member elected Option A, I decline to make an election until age 60, an election for less than maximum coverage, without obtaining the required spousal concurrence; therefore, he was automatically enrolled based on his eligible beneficiaries, which resulted in the election of Option C, Provide an immediate survivor annuity beginning on the day after death for spouse and children effective, 12 Nov 02.

On 20 Sep 04, ARPC received notification that the service member was deceased.  On 8 Oct 04, a claim for Servicemembers’ Group Life Insurance was sent to Prudential Insurance on behalf of the applicant.  RCSBP coverage was verified and annotated on the Casualty Checklist for a Non-Duty Status member, and Reserve Retirement Order XXXXX, was created for the purpose of completing a claim for RCSBP benefits.  ARPC does not have evidence that the Air Force notified the applicant of her eligibility for RCSBP, assisted with the completion of the annuity paperwork, or that the completed RCSBP annuity request was sent forward to the DFAS, Retired and Annuitant Pay office, for establishment of the RCSBP annuity.

As such, ARPC finds the applicant is the victim of an error or injustice. Therefore, ARPC recommends the record be corrected to reflect that the applicant’s claim for her deceased husband’s benefits was filed timely.  Additionally, the applicant should be awarded all annuity payments in arrears as if the annuity account had been established in a timely manner.

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 18 Nov 21 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.  ARPC cannot confirm the Air Force notified the applicant of her eligibility for RCSBP, assisted with the completion of the annuity paperwork, or that the completed RCSBP annuity request was sent forward to the DFAS, Retired and Annuitant Pay office, for establishment of the RCSBP annuity.  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 FORMER MEMBER be corrected to show that on 29 Sep 04, APPLICANT submitted a timely and effective claim for payment of the Survivor Benefit Plan annuity under the provisions of Title 10, United States Code, Chapter 73, and the aforesaid application was correct and complete, including all necessary documentation of dependency.

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-2021-00683 in Executive Session on 20 Jan 22:

, 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 11 Mar 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 17 May 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 18 Nov 21.

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.