RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01144

XXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

Her election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically, to decline participation in the RCSBP.

APPLICANT’S CONTENTIONS

She elected not to participate in the Survivor Benefit Plan (SBP), however, when she received her first Retiree Pay Account statement, she discovered deductions for SBP and RCSBP premiums.  She was advised by the Total Force Service Center (TFSC) myPers office this was a Military Personnel Data System (MilPDS) system error, and it could only be corrected through the AFBCMR process.  

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).

On 19 Jul 02, ARPC/DPTT sent the applicant the standard Notification of Eligibility for retired pay (20-year letter) informing her that she 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, she 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 31 May 13, according to Reserve Order XXXXX, dated 6 Apr 13, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List.  

On 14 Apr 20, according to DD Form 2656, Data for Payment of Retired Personnel, submitted by the applicant, she elected Option A (Previously declined to make an election until eligible to received retired pay).  

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.”  

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.” 

DoD 7000.14-R, Volume 7B, paragraph 5408.  “The Government does not subsidize the cost of providing RCSBP coverage under the immediate or deferred annuity option, but the members and beneficiaries who potentially will benefit from the coverage share the cost.   The cost to the retiree, known as the Reserve Component Premium, is in the form of an additional deduction from his or her retired pay beyond the Standard Premium.  The RCSBP, unlike SBP, requires a reduction in the survivor annuity.  That reduction, known as the Survivor’s Annuity Premium Deduction, begins when the survivor begins to receive an annuity.  The Reserve Component Premium and the Survivor’s Annuity Premium Deduction increase at the same time and by the same percentage that retired pay increases by cost-of-living adjustments.”  

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application.  RCSBP extends eligibility of the SBP to Reserve Component Service members who would otherwise be eligible to receive retired pay, except they have not yet reached retirement age (60 years old).  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 their dependent spouse and/or children.  

On 13 Apr 02, the applicant completed the required years of service to be eligible for non-regular retirement in accordance with (IAW) Section 12731, of 10 U.S.C., and on 19 Jul 02, she received notification of RCSBP eligibility and election materials.  She did not return the documentation with her desired election within the 90-day timeframe prescribed by law, and was therefore ineligible to change her election.  IAW Section 12731, of 10 U.S.C., she was automatically enrolled based on her eligible beneficiaries, which resulted in Option C (Defaulted to immediate RCSBP Coverage), on DD Form 2656, Data for Payment of Retired Personnel, effective 17 Oct 02.  

On 14 Apr 20, the applicant completed her final SBP election.  In section X, Block 33 of DD Form 2656, she erroneously selected that she previously elected to defer the decision to enroll in RCSBP coverage.  

The applicant will have premiums withheld from her retired pay account each month until she has paid for the coverage provided from the date of election until the date the applicant turned age 60.  The applicant may discontinue SBP participation between the period beginning on the second anniversary of receipt of retired pay and ending on the third anniversary.  She will continue to have the cost of the RCSBP coverage deducted from retired pay until she has paid for the previous coverage.

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 29 Jun 21 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.  Available documentation revealed IAW Title 10, Section 12731, the applicant failed to make an election of RCSBP within the 90-day time limit after she received notification of having completed the years of service to be eligible for non-regular retirement on 19 Jul 02; therefore, by law, she automatically received full, immediate RCSBP coverage for her dependent spouse.  The applicant may discontinue participation in RCSBP between the period beginning on the second anniversary of receipt of retired pay and ending on the third anniversary.  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.

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-2021-01144 in Executive Session on 28 Oct 21:

, 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 19 Dec 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 21 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 29 Jun 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2021-01144, as required by AFI 36-2603, paragraph 4.11.9.