RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-02561

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically, to decline making an election until age 60.  

APPLICANT’S CONTENTIONS

He was misinformed of his election options at the time he made his election on 18 Jul 02.  He requests a change resulting in no responsibility of payments due after his retirement from military service.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a chief master sergeant (E-9) in the Air National Guard (ANG).  

On 4 Feb 02, ARPC/DPPR notified the applicant of his eligibility for retired pay at age 60 and audit of retirement points (20-year letter).  

On 18 Jul 02, according to ARPC 123, Reserve Component Survivor Benefit Plan Election Certificate, the applicant elected Option C (Immediate Annuity) for spouse and child(ren) based on full retired pay.  The applicant indicated he was married and had children.   

On 26 Oct 20, according to a divorce decree in the applicant’s automated records management system (ARMS), the applicant divorced his spouse.  The divorce decree does not include any language pertaining to SBP coverage.  The military personnel data system (MilPDS) reflects the applicant is currently divorced.

For more information, see the excerpt of the applicant’s / deceased service member’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 540404.  “Any Reserve member who does not have an eligible beneficiary when becoming eligible to participate in the RCSBP, who later marries or acquires a dependent child, may elect to participate in the RCSBP, if the election is completed within 1 year of acquiring a spouse or dependent child.”

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.”  

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.”  

AIR FORCE EVALUATION

ARPC/DPTT recommends denial.  On 9 Sep 01, the applicant completed 20 years of satisfactory service and on 18 Jul 02 made an original election on the ARPC Form 123 for Option C, Immediate annuity upon death regardless of age for spouse and child(ren).  The applicant did not make any change in his election due to a life changing experience within the timeframe of the original election up until applying for retired pay.  
 
In accordance with DODI 1332.42, Survivor Benefit Plan, paragraph 4.4., the applicant will have an opportunity to change an election in certain circumstances such as death of a spouse, divorce or remarriage. The applicant will have 12 months from the life changing event to submit a DD Form 2656-6, Survivor Benefit Plan Election Change Certificate, for a new election.  If he is enrolled into the spouse and child coverage and has a divorce after the original election, the RCSBP coverage changes from spouse and child to child only coverage.  The spouse coverage is suspended until or if he remarries.  

The applicant may discontinue SBP participation between the period beginning on the 25th month of receipt of retired pay and ending on the 36th month.  Once participation discontinues under this provision, there will be no refund of SBP premiums, no benefits will be paid in conjunction with previous participation and the applicant may not resume participation for any category of beneficiary.  The applicant will still owe premiums for RCSBP coverage held from the time of election through retired pay age.  

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 10 Nov 22 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 not 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 does not substantiate the applicant’s contentions. The applicant contends he was misinformed of his election options at the time he made his election on 18 Jul 02; however, he has provided no evidence to substantiate he was miscounseled or that an error was made in the completion of his ARPC 123 dated 18 Jul 02. Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2022-02561 in Executive Session on 16 Feb 23:

 , Panel Chair
 , Panel Member
 , Panel Member

 All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 13 Sep 22.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 27 Oct 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Nov 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.