RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01607

XXXXXXXXXXXXXX	COUNSEL:  NONE

	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

She made a timely election to not participate in the Reserve Component SBP (RCSBP); however due to an administrative error, SBP premiums are now being deducted from her retired pay.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (E-6).

On 20 May 2003, ARPC/DPTT sent the applicant the standard notification of eligibility (NOE) 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 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 15 June 2003, according to ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate, dated 19 June 2003, the applicant elected Option A, I Decline to Make an Election until Age 60, and her spouse concurred with the decision.

On 30 June 2003, according to Reserve Order EK-XXXX, dated 22 May 2003, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List.  

On 6 October 2020, 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 received retired pay, and elected not to participate in SBP.  Her spouse concurred with the decision with a signature date of 2 October 2020.  
 
On 23 December 2020, according to Reserve Order EL-XXXX, dated 15 December 2020, provided by the applicant, she 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.

AIR FORCE EVALUATION

ARPC/DPTT recommends granting the application.  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.  The prescribed time limit to complete an 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 10 U.S.C § 12731.

On 1 May 2003, the applicant completed 20 satisfactory years and received notification of RCSBP eligibility and election materials.  The applicant returned ARPC Form 123 with her desired election within the 90-day timeframe prescribed by law, electing with spouse concurrence, Option A, I decline to make an election until age 60.  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 6 October 2020, in preparation for commencement of retired pay, the applicant completed DD Form 2656 in conjunction with her retirement application.  The applicant, with spouse concurrence, elected not to participate in SBP.  The applicant’s spouse made an administrative error on the DD Form 2656, Part V, Spouse SBP Concurrence, when he dated the form prior to the applicant, which rendered the application incomplete.  Regardless of any request by the member to do otherwise, when all requirements for the SBP election are not satisfied prior to retirement, full spouse costs and coverage are implemented by the Defense Finance and Accounting Service (DFAS).  

Based on the evidence presented, and analysis of service records there is evidence of an error on the part of the Air Force.  The date error made by the applicant’s spouse on the DD Form 2656, completed 6 October 2020, should have been found during the audit and returned by Headquarters Air Reserve Personnel Center, Retirements Branch for correction of administrative error.  In accordance with 10 U.S.C § 1454, a retiree who believes he or she was 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 NOE 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 SBP, 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 26 November 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. 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. 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-2021-01607 in Executive Session on 20 January 2022:

, 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 29 March 2021.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTS, dated 21 November 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 November 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.