RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02154

XXXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

In Jul 20, he filed for retirement.  Following instructions gained from online PORTAL links and myPers technicians, he completed his application, including the notarized DD Form 2656, Data for Payment of Retired Personnel, which clearly checked Selection G, I do not elect to participate in the SBP.  From Jul 20 through Jan 21, he made no less than 20 phone/email/myPers ticket contacts tracking his retirement, especially the SBP election.  He was assured his retirement was being processed per his instructions.  In Mar 21, when his pay began, he discovered the SBP election had instead been activated somewhere in the process, contrary to his notarized elections.

He proceeded to seek guidance on how to correct the error and was instructed that the error was corrected by the Defense Finance and Accounting Service (DFAS).  Ninety-one days after retirement, he received an email from myPers stating his SBP election had been finalized, again keeping him in the program.  The email stated the decision was fixed and could not be changed for at least 24 months.

After filing an Inspector General complaint, he discovered he was notified to make his RCSBP election late, as Air Force Reserve Command (AFRC) failed to send his 20-year letter, which triggers part of the SBP process.  He was already in the process of applying for retirement before the system could catch up with the oversight.  The Air Force should accept his DD Form 2656 and his election to decline coverage, with spouse concurrence, so this correction of records is legally, morally, and ethically sound.  He should not literally pay for the failure of AFRC to properly execute his legal retirement documents due to program glitches/oversights.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force Reserve lieutenant colonel (O-5) receiving retired pay.

On 22 Jul 20, according to DD Form 2656, the applicant elected to not participate in SBP.  
 
On 17 Jan 21, according to Reserve Order XXXXX, dated 21 Jan 21, 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.” 

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.  Administrative and communication errors during the applicant’s 90-day election period led the applicant to believe he satisfied the election requirements by completing DD Form 2656.  The 90-day suspense to complete an RCSBP election utilizing DD Form 2656-5, Reserve Component Survivor Benefit Plan Election Certificate, lapsed, resulting in an irrevocable election for immediate coverage, and rendering the applicant ineligible to make a new election in conjunction with their retirement application.

 On 27 Dec 19, the applicant completed 20 satisfactory years of service, and on 12 Mar 20, received notification of RCSBP eligibility and election materials.   Due to administrative error on the part of the Air Force, the applicant’s notification for RCSBP eligibility was delayed, which generated simultaneous requests for Survivor Benefit Plan forms from two different Air Reserve Personnel Center [ARPC] offices during the period of time the applicant was applying for retired pay.  On 23 Jun 20, the ARPC Retirements branch instructed the applicant to complete DD Form 2656 as part of the retirement application process.  The applicant, believing he was notified to complete the same election for survivor benefits a second time, completed the DD Form 2656 electing to decline coverage for SBP, with spouse concurrence, effective 22 July 2021.  The applicant’s original RCSBP election defaulted to automatic coverage after the 90-day suspense window lapsed without action, updating the Military Personnel Data System with option C, immediate annuity for spouse, effective 10 Jun 20. Automatic coverage is irrevocable and RCSBP coverage converts to SBP coverage with the same level of coverage and beneficiaries.

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 Notification 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 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 25 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.  The Board concurs with the rationale and recommendation of ARPC/DPTT and finds a preponderance of the evidence substantiates the applicant’s contentions.  The applicant’s Notification of Eligibility (20-year letter) was delayed causing confusion regarding completion of the necessary forms required at the time of his retirement.  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. He elected Option A, Previously declined to make an election until eligible to receive retired pay, for his Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of his Notification of Eligibility and his spouse concurred with the decision. 
	
	b. He be authorized full reimbursement of all SBP premiums withheld from his 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-2021-02154 in Executive Session on 28 Oct 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 14 Jun 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 18 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 25 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.