RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01266

XXXXXXXXXXXX	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

When submitting her retirement application, she chose not to take the RCSBP option.  She did not opt for it when reaching 20 years of service, and chose not to receive RCSBP at retirement, even going so far as to get it notarized.  It should be her choice and not the government making the choice for her and her spouse.  Her DD Form 2656, Data for Payment of Retired Personnel, clearly states they have chosen to not receive the RCSBP option.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force Reserve master sergeant (E-7) awaiting retired pay at age 60.

On 14 Sep 20, per Reserve Order XXXX, dated 5 Jan 21, the applicant was retired, and effective the date retired, authorized retired pay per Title 10, U.S.C., Section 12731, and placed on the USAF Retired List.  

On 16 Dec 20, according to DD Form 2656, Data for Payment of Retired Personnel, provided by the applicant, she elected Option A, Previously declined to make an election until eligible to received retired pay, and Block 34. SBP Beneficiary Categories, item g, I elect not to participate in SBP.  Her spouse concurred with her election in Section XII – SBP Spouse Concurrence, Block 41. Spouse.
 
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 granting the applicant’s request to terminate her RCSBP election and reimburse premiums.  All Reserve Component service members who are eligible to participate in the 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.  The prescribed time limit for RCSBP election is before the end of the 90th day after the service member receives notification of having completed the years of service to be eligible for non-regular retirement in accordance with Section 12731 of Title 10, United States Code (U.S.C.).

The applicant’s current election reflects Option C, provide an immediate survivor annuity beginning on the day after death for spouse.  They were able to verify the applicant was never officially notified to make an RCSBP election within 90 days of her 20 year satisfactory service date.  The applicant’s personnel record does not include the PS Form 3811, Certified Mail Receipt; DD Form 2656-5, Reserve Component Survivor Benefit Plan Election Certificate; DD Form 2656; and/or ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, that supports the current election.  Additionally, they verified that the member retrieval section of the Notification Eligibility Retirement Pay Application (NERP) is blank, which supports the absence of notification to make an election.

In preparation for commencement of retired pay, on 16 Dec 20, the applicant completed DD Form 2656 in conjunction with her retirement application.  The applicant, with spouse concurrence, elected not to participate in the RCSBP.  Spousal concurrence is required if a 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.

Based on the evidence presented, and analysis of service records there is evidence of an error on part of the Air Force.  In accordance with Section 1454 of Title 10, U.S.C., a retiree who believes they were erroneously enrolled in the SBP or RCSBP may request correction of coverage within one year following the date of his or her retirement or, in the case of non-regular retirees, within one year of the end of the 90-day period that followed notice of eligibility or within one year of the date of entitlement to receive retired pay.  The retiree must provide detailed justification for the correction in writing to the Secretary concerned.  If it is proper to disenroll the participant from the SBP/RCSBP, the applicable refund will be processed, if not otherwise prohibited by law.  Such errors must be administrative in nature and not as a result of neglect by the participant.

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 17 Aug 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.  There are no documents in the applicant’s military personnel record supporting the current election, and the DD Form 2656 clearly reflects the applicant’s decision to decline RCSBP, with her spouse’s concurrence.  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. She elected Option A, Previously declined to make an election until eligible to receive retired pay, for her Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of her Notification of Eligibility and her spouse concurred with the decision.

	b. On 15 Sep 20, she elected not to participate in the Survivor Benefit Plan (SBP) pursuant to Title 10 United States Code, Section 1454, and competent authority approved her request.
	
	c. She be authorized full reimbursement of all SBP premiums withheld from her 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-2021-01266 in Executive Session on 2 Dec 21:

, 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 12 Apr 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 3 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 17 Aug 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.