RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2022-00445

XXXXXXXXXXXXXX	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

He was given inaccurate counseling on RCSBP election by his unit Career Advisor in 2006 and was told if he did not receive his 20-year letter, or respond to the RCSBP election, it would automatically be selected for him as deferred to age 60.  He went to the [Base] Casualty Office in 2017 and was advised to call Air Reserve Personnel Center (ARPC) Retirements to learn what his election was.  The counselor called ARPC on the speaker phone, and he was told he had Option A (defer to age 60).  His spouse, who is also an Air National Guard (ANG) retiree, was told she was Option C (immediate annuity).  

In Sep 21, he called ARPC Retirements for help applying for his ANG retirement and was shocked to learn he was no longer listed in their database as Option A but as Option C.  He explained he was told years back that he was Option A, and would have addressed it at that time had he been told otherwise.  He did not know the RCSBP election default law changed in 2003, and this information was not updated or counseled at his unit. He was advised by ARPC to submit an application to the Air Force Board for Correction of Military Records (AFBCMR). 

His spouse has Survivor Benefit Plan (SBP) coverage under her previous active duty deceased spouse, and upon the applicant’s death, she will receive the SBP annuity that is currently suspended due to their marriage.  The SBP annuity under her previous spouse would also be much greater.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air National Guard chief master sergeant (E-9), receiving retired pay.

On 7 Mar 07, ARPC/DPPR sent the applicant the standard Notification of Eligibility (NOE) 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.

On 29 May 07, according to PS Form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 31 Dec 13, according to Reserve Order XXXXX, dated 24 Oct 13, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List.  

On 4 Oct 21, according to DD Form 2656-5, Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, provided by the applicant, he elected Option A, I decline to make an election until age 60.

On 4 Oct 21, according to DD Form 2656, Data for Payment of Retired Personnel, provided by the applicant, he elected Option A, Previously declined to make an election until eligible to receive retired pay.  The DD Form 2656 was signed by the applicant’s spouse, but not by the applicant.

On 14 Oct 21, according to DD Form 2656 provided by ARPC/DPTT, the applicant elected Option C, Previously elected or defaulted to immediate RCSBP Coverage.  

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.”  

Department of Defense Instruction (DoDI) 1332.42, Survivor Benefit Plan, Section 10.2. Annuities Payable to Survivors of Retirees:

 d. Beneficiaries of Multiple Uniformed Services Members. A spouse or former spouse who is a potential SBP or RC-SBP beneficiary due to marriages to more than one participating member must choose which annuity to receive.  Receipt of two or more SBP annuities is prohibited.

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 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 10 U.S.C. § 12731.  A service member may not revoke their decision to participate in RCSBP if not revoked before the date which is 90 days after receipt of notification of eligibility.

Per DoDI 1332.42, paragraph 4.1. Notification to Members:

a. Secretary Concerned Notification. The Secretary concerned must notify all members who are eligible to elect to participate in the SBP and RC-SBP programs, such that: 
(1) Members qualifying for a regular or disability retirement pursuant to Chapter 61 of Title 10, U.S.C. will be notified of their eligibility to participate in SBP before retirement.
(2) Members qualifying for a non-regular retirement pursuant to Chapter 1223 of Title 10, U.S.C. will be notified of their eligibility to participate in RC-SBP, and SBP, upon Notice of Eligibility (NOE).

b. Information to Be Provided. 
(1) The notification must include detailed information about the program or programs to ensure that the member and the spouse, if applicable, have sufficient knowledge to make an informed election.  Information provided must contain current policies and procedures, and will be in accordance with Subchapter II of Chapter 73 of Title 10, U.S.C., this issuance, and any future updates to DoD policy related to SBP and RC-SBP.

The applicant’s current election reflects Option C, Provide an immediate survivor annuity beginning on the day after death for spouse only.  ARPC/DPTT verified the applicant was never officially notified to make an RCSBP election within 90 days of his 20-year satisfactory service date of 14 Dec 06.  His personnel record does not include the PS Form 3811, DD Form 2656-5, or ARPC 123, Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, which supports the current election.  Additionally, the date and time in the Notification Eligibility Retirement Pay Application is blank which supports the absence of notification to make an election.  The lack of notification triggered the Military Personnel Data System (MilPDS) to update an automatic, non-response election, Option C, Provide an immediate survivor annuity beginning on the day after death for spouse, effective 16 Aug 07.  Finally, on 4 Oct 21, in preparation for commencement of retired pay, the applicant completed the DD Form 2656, declining coverage under the SBP, with his spouse’s concurrence.

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 22 Mar 22 for comment (Exhibit D), but has received no response.

AMENDED AIR FORCE EVALUATION

ARPC/DPTT recommends denying the application. The applicant did not make an election within the 90-day timeframe following Notification of Eligibility prescribed by law, and is ineligible to change his election outside of the eligible window.   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, based upon the member’s MilPDS record.  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 10 USC 12731.

The applicant completed 20 satisfactory years of service on 14 Dec 06; however, the RCSBP NOE takes approximately 120 days for members to receive due to a delay in the Point Credit Summary to reflect the 20 years in the member’s record.  The applicant signed the PS Form 3811 on 29 May 07, confirming he received the RCSBP NOE.  He did not return the documentation with his desired election within the 90-day timeframe prescribed by law, and was automatically enrolled based on his eligible beneficiaries, resulting in Option C, Provide an immediate survivor annuity beginning on the day after death for spouse, effective 16 Aug 07. 

On 14 Oct 21, in preparation for commencement of retired pay, the applicant completed the DD Form 2656, stating in Section 33. Reserve Component Only, he was previously under Option C for RCSBP.  Reserve and Guard members that have a previous RCSBP election of Option C cannot make a new election on the DD Form 2656, as it is not a change of election form due to a life-changing event.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AMENDED AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 14 Jun 22 for comment (Exhibit F), but has received no response.

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 Board concurs with the rationale and recommendation of ARPC/DPTT’s amended advisory and finds a preponderance of the evidence does not substantiate the applicant’s contentions.   The applicant completed 20 satisfactory years on 14 Dec 06, and signed for notification of RCSBP eligibility and election materials (PS Form 3811) on 29 May 07. However, he did not return the documentation with his desired election within the 90-day time frame prescribed by law. Therefore, he was automatically enrolled in the RCSBP based on his eligible beneficiaries, which resulted in Option C, Provide an immediate survivor annuity beginning on the day after death for spouse, effective 16 Aug 07.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2022-00445 in Executive Session on 18 Aug 22:

, 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 5 Oct 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, w/atchs, dated 18 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Mar 22.
Exhibit E:	Amended Advisory, ARPC/DPTT, w/atchs, dated 10 Jun 22.
Exhibit F:	Notification of Amended Advisory, SAF/MRBC to Applicant, dated 14 Jun 22.

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.