RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01522

XXXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

His election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically:

a. Immediately terminate coverage and withdraw from the obligation to pay further premiums.
b. Recoup premiums paid to date in the amount the Board determines is justified and appropriate.
c. Allow withdrawal from the RCSBP and relief from further obligation for premiums retroactive to a date determined by the Board to be justified and appropriate.
d. If above requested relief is denied, request the Board reduce the monthly premiums due to financial hardship.

APPLICANT’S CONTENTIONS

He is seeking correction to an injustice in that he was lied to, given false information and erroneously and inappropriately directed to enroll in a program he did not want and does not need.  He never made the election.  Furthermore, he was told at the time that, as a reservist, he had no option other than Option C that would tie him forever to premiums for a product he never wanted in the first place.  No one ever explained the consequences of this election.  To compound the injustice, during the window after his retirement, when one is supposed to be allowed to opt out of the program, he was again misinformed and told since he had elected Option C and was a reservist, he could not opt out of RCSBP at all.  He discovered through the Veterans Administration that this is completely untrue.  He should have been informed of the various options and told he could have selected Options A or B, or opted not to participate at all, which is what he desired at the time.

He has been faithfully and persistently pursuing relief through the Defense Finance and Accounting Service (DFAS) and received their final word that he needed to petition this Board for relief.  He then contacted his local Air Force base and the new SBP Officer confirmed he had been misdirected twice.  Finally, DFAS cannot find anywhere in his records the document directing him to Option C.  He finds this highly suspicious since he was railroaded from the start and now there is no record of it.

At the 20-year point, he was supposed to be given a briefing or at least some literature to explain RCSBP, in its entirety, and given options as to whether or not he wished to participate, and if so, to what degree.  This was never done.  The Air Reserve Personnel Center (ARPC) SBP Specialist told him that as a reservist, he had no option other than Option C.  He never agreed nor signed anything and this is supported by the fact that there is no paperwork that the Air Force can produce otherwise.

When he retired, he was unhappy as he did not want this coverage nor did/does his spouse.  He made several complaints during the supposedly open window in which one can make an alteration, but was again told as a reservist who elected Option C, the premiums were locked in and the case was closed.

He had someone knowledgeable at the Veterans Affairs (VA) tell him he was misinformed and completely mishandled.  He then went to DFAS and the SBP Specialist who both confirmed there has been an injustice.

 DD Form 2656-5, Reserve Component Survivor Benefit Plan Election Certificate, was supposed to be filed, which cannot, for some reason, be located by authorities.  Between the second and third years after retirement, he made several attempts to opt out of the RCSBP.  He was refused and told he had opted for a permanent Option C as a reservist.  On 20 Sep 20, he first learned he could have opted out of the RCSBP entirely or at least have opted for something less permanent.  VA confirmed this, and on 4 Feb 21, he received a letter from DFAS telling him to petition the Board.

A claim for promissory estoppel is established when there is a “clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the reliance is made, and an injury sustained in reliance on that promise.” Braddock v. Braddock, 60 A.D.3d 84, 95 (1st Dept. 2009) (quoting Williams v. Eason, 49 A.D.3d 866, 868 (2008)).  In this matter, his reliance on the direction and guidance of those charged with RCSBP knowledge was both reasonable and foreseeable.  He consequently sustained a serious financial injury in reliance on that guidance.  He would not be receiving any unjust enrichment since he would only now be receiving the amount of retirement pay he should rightfully have been receiving since retirement.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is retired Air Force Reserve brigadier general (O-7) receiving retired pay.

On 2 May 05, 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 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 25 Mar 06, according to ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, the applicant elected Option C (Immediate Annuity for spouse only) based on full retired pay.

On 27 Feb 15, according to DD Form 2656, Data for Payment of Retired Personnel, the applicant elected Spouse Only coverage, based on full gross pay.   Section X, Remarks, states “I have elected SBP because and only because I was told that I was absolutely required to have it until the 2nd anniversary of retired pay.  I hereby reserve and exercise my option to re-examine this decision at that time and to discontinue SBP if my wife and I decide it is not in our best financial interests at the time.  If I was given erroneous information and do NOT elect SBP at this time, I would request being so informed and being allowed to re-examine the election I have made on this form.  SP [sic] info as given to me by DFAS.

On 16 Apr 15, according to Reserve Order XXXX dated 11 Mar 15, 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.”  

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 540402.  “A member electing to participate must designate an immediate election, a deferred election, or indicate a decision to delay the election until reaching retirement age. These are described as Options A, B, or C.” 

DoD 7000.14-R, Volume 7B, paragraph 540701.  “Elections filed during the 90-day period referred to in paragraph 540401 are generally irrevocable unless revoked before the expiration of the 90-day period.”  

10 U.S.C. § 1448(a)(3)(B).  “A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the person’s spouse elect (i) not to participate in the Plan; (ii) to designate under subsection (e)(2) the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member’s birth (rather than the day after the date of the member’s death); (iii) to provide an annuity for the person’s spouse at less than the maximum level; or (iv) to provide an annuity for a dependent child but not for the person’s spouse.”  

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.”  

DoD Instruction 1332.42, Survivor Benefit Plan, Section 4: Notification and Election, paragraph 4.6. Discontinuing Participation, a. General:

(1)	A member may elect to discontinue participation in SBP by submitting DD Form 2656-2 only during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.
(6)	A member that elects to discontinue SBP coverage after having previously participated in the RCSBP Program will continue to have the cost of the RCSBP coverage deducted from retired pay.

AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application as there is no evidence of an error or injustice.  The applicant was notified of his eligibility for RCSBP and an explanation of the program cost and guidance on making elections.  The applicant returned documentation with his desired election. 

RCSBP extends eligibility of the Survivor Benefit Plan 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 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.

On 31 Dec 04, the applicant completed 20 satisfactory years of service.  ARPC does not have a record of the date the applicant received notification of RCSBP eligibility and election material; however, the applicant returned ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, with his desired election of Option C (immediate annuity for spouse only), effective 25 Mar 06.  This election form was received by Headquarters, ARPC on 3 Apr 06, and committed to the applicant’s personnel record on the same date. 

On 27 Feb 15, in conjunction with applying for retired pay, the applicant completed DD Form 2656, electing coverage for spouse based on full gross pay.  Additionally, service members participating in RCSBP are automatically enrolled in SBP when they become eligible to receive retired pay.  RCSBP coverage converts to SBP coverage with the same beneficiaries and at the same level of coverage.  Service members may not enroll in new or secondary coverage when they become entitled to receive retired pay, unless the member previously elected to defer the decision to enroll in coverage.

Service members are not billed for this program until they reach age 60 and start drawing retired pay.  If RCSBP Option C is elected, there is a Reserve portion cost added to the basic cost to cover the additional benefit and assured protection should the applicant die prior to age 60.  The applicant must now pay for the Reserve Component Cost in addition to the SBP premium cost.  The Reserve Component Cost is the amount currently taken from the applicant’s retired pay, used to pay for the premiums incurred prior to his 60th birthday, during the time when the applicant’s spouse was covered under RCSBP, but was not paying premiums for the coverage.  The applicant will have premiums withheld from his retired pay account each month until he has paid for the coverage provided from the date of election, 25 Mar 06, until the date the applicant began drawing retired pay.

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 7 Jul 21 for comment (Exhibit D), and the applicant replied on 21 Jul 21.  In his response, the applicant contended at no time was there an explanation of the various programs.  He was directed to sign a form and did so on pain of being dismissed from the Air Force Reserve.  He was told Option C was the only option open to him.  It was an unlawful and unjust contract of adhesion in that the Air Force Reserve held all the power and told him to sign or leave.  The fact that the Air Force Reserve is now trying to state he voluntarily and with knowledge opted for programs detrimental to his financial future is ludicrous and completely unworthy of belief.

DFAS cannot locate the document directing him to Option C anywhere in his records.  Truthfully, he is not surprised in that he never completed such an election. He hopes the Board will not rubber stamp an unfounded, unproved, and undocumented assertion in the name of expediency.  He should be granted relief because he reasonably relied on advice provided by agents of the government acting in their official capacity.  It is wrong to allow individuals who were either unprepared or indifferent to carrying out their duties correctly to inflict permanent punishment on an innocent person who relied on their directions.  It now appears the only thing the Air Force has is a naked assertion that his case is baseless, and this cannot withstand the evidence he has placed before this Board.

The applicant’s complete response is at Exhibit E.

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 applicant states DFAS could not locate the document showing he elected Option C.  However, the evidence indicates on 25 Mar 06, the applicant completed and signed ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, which allowed him to select one of three RCSBP options (1) Option A,  I decline to make an election until Age 60; (2) Option B, Deferred Annuity; and (3) Option C, Immediate Annuity.  The applicant elected Option C, spouse only coverage, based on full retired pay and his spouse concurred with his decision.  This election required the applicant to be automatically enrolled in SBP when he began receiving retired pay, as evidenced by his SBP election made on 27 Feb 15, via DD Form 2656, Data for Payment of Retired Personnel.  As noted above, DoDI 1332.42, allows a member to discontinue SBP participation by submitting DD Form 2656-2, SBP Termination Request, after the second year, but before the third year after receiving retired pay. As documented on DD Form 2656, the applicant concedes he was informed he was required to have SBP coverage until the second anniversary of his retired pay.  However, although the applicant states he attempted to terminate coverage, he did not provide evidence he submitted the required DD Form 2656-2.  Regardless of whether or not the applicant chose to terminate SBP coverage, he would still be required to pay the Reserve Component cost from the date of his RCSBP election to the date he started receiving retired Pay.  Therefore, 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 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).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  In view of the foregoing, 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-2021-01522 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 4 Feb 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 9 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Jul 21.
Exhibit E:	Applicant’s Response, dated 21 Jul 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.