RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-01138 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her records be corrected to show she declined Reserve Component Survivor Benefit Plan (RCSBP) coverage at the time she was eligible for Reserve retired pay and premiums be refunded. _________________________________________________________________ APPLICANT CONTENDS THAT: She was miscounseled and unintentionally enrolled in RCSBP. She was informed at the time of her retirement notification that she could change her election at age 60. In support of her request, the applicant provided a copy of ARPC Form 83, Application for Retired Pay, DD Form 2656, Data for Payment of Retired Personnel, Reserve Order EK-3272, a Letter from ARPC/DPPR, and a copy of a Retiree Account Statement. Applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was notified of her eligibility to participate in the RCSBP by letter dated 29 August 2005. She made no election during that time and was automatically enrolled in Option C, "Immediate Annuity for spouse." In November 2008, the applicant submitted a DD Form 2656, electing not to participate in SBP. _________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPP recommends denial. DPP states the RCSBP package that was sent to the applicant clearly explained that if the election form was not received or postmarked within 90 calendar days of receipt of the package the applicant would be considered to have made an election. If married, option "C" would be elected. If not married, then option "A" would be elected for her. A cover letter was provided with contact phone numbers for the applicant to call with questions. In 2008, the applicant was sent a letter notifying her that she was eligible to apply for Reserve retired pay to be effective on 11 January 2009, her 60th birthday. Included with the letter was some general information on retired pay, the appropriate pay application forms, and information regarding her RCSBP election of automatic option "C." When the applicant filled out her application for retired pay DD Form 2656, she changed her election from spouse to electing not to participate in SBP. Records indicate that her retired pay order was published, and her case forwarded to the Defense Finance and Accounting Service (DFAS) prior to her 60th birthday where her retired pay account was established. The applicant may discontinue the program on the second anniversary of receiving retired pay, as required by Title 10. Under Title 10 U.S.C., Section 1448a, "A participant in the plan may, subject to the provisions of this section, elect to discontinue participation in the plan at any time during the one- year period beginning on the second anniversary of the date on which payment of retired pay commences." The DPP complete evaluation, with attachments, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 15 May 2009, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C). As of this date, this office has received no response. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRB Legal Advisor makes no recommendation. The Legal Advisor states the applicant may in fact have been miscounseled or confused since one of the options is to defer the decision, but to exercise this option the election paperwork must be returned. In this regard, consider how she states it herself in her application, that she could change the decision she made today, which sounds like she did intend to make a decision in 2005, not have one made for her by default. Moreover, she invites the panel to review the package in its entirety (not just the quotes above) as to whether they believe the package clearly communicates that failure to return it will take away the applicant's option to decline coverage at age 60. The applicant is a lieutenant colonel and did not return the paperwork as directed. At the same time, the panel may find, as he does, that the package is far from a model of clarity, and there may have been honest miscommunication in explaining the various options. The Legal Advisor's complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 24 June 2009, a copy of the Legal Advisor's evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit E). As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the Personnel Program Management Division and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2009-01138 in Executive Session on 29 September 2009, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2009-01138 was considered: Exhibit A. DD Form 149, dated 14 March 2009, w/atchs. Exhibit B. Letter, ARPC/DPP, dated 7 May 2009, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 15 May 2009. Exhibit D. Letter, SAF/MRB, dated 19 June 2009. Exhibit E. Letter, AFBCMR, dated 24 June 2009. Panel Chair