RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01649

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 submitted her DD Form 2656, Data for Payment of Retired Personnel, on 20 Aug 20 [sic] and retired on 15 Dec 20.  Her election was clearly to decline RCSBP.  It was signed by her spouse and notarized.  When she received her Retirement Statement, she noticed that over $133 was being taken out of her pay for RCSBP, and immediately contacted the Defense Finance and Accounting Service (DFAS) and myPers to investigate.

DFAS told the applicant, because she did not indicate that she had a spouse on DD Form 2656, item 34 (SBP Beneficiary Categories) the DFAS system defaulted to auto-enrollment and deduction of pay.  After multiple calls, she was directed to contact the Air Force Board for Correction of Military Records.  She also received a message from myPers directing her to do the same.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve master sergeant (E-7) in a retired pay status.

On 24 Aug 20, according to DD Form 2656, provided by the applicant, she elected Option A (Previously declined to make an election until eligible to received retired pay), and with spouse concurrence, elected not to participate in RCSBP.

On 24 Nov 21, 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.  
 
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.”  

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, 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.” 

AIR FORCE EVALUATION

ARPC/DPTT recommends granting the application.  Based on the evidence presented, and analysis of service records, there is evidence of an error on part of the Air Force.  The election in the Military Personnel Data System was erroneously updated causing an administrative error and full spouse costs and coverage to be implemented by DFAS.  In accordance with Section 1454 of Title 10, U.S.C., 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 Notification of Eligibility, or within one year of the date of entitlement to receive retired pay.

The applicant’s current election reflects Option C, provide an immediate survivor annuity beginning on the day after death for spouse.  ARPC was 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 (RCSBP) Election Certificate, DD Form 2656 and/or ARPC 123, Reserve Component Survivor Benefit Plan Election Certificate, that support the current election.  Additionally, they verified the date and time in the member retrieval section of the Notification Eligibility Retirement Pay Application is blank, which supports the absence of notification to make an election.

On 24 Aug 20, 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 RCSBP.

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 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 verified the applicant was never officially notified to make an RCSBP election within 90 days of her 20-year satisfactory service date; however, in preparation for retirement, she did elect, with spouse concurrence, to not participate in the RCSBP.  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 Survivor Benefit Plan 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-2021-01649 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 9 Mar 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 21 Nov 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 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.