RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-02034

            COUNSEL: NONE

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE: 5 JAN 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be changed to allow him to withdraw  his  participation  in  the
Reserve Component Survivor Benefit Plan  (RCSBP)  and  remove  the  debt  of
$10,606.81 from his record.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Through no fault of his, but an error on the part  of  the  Defense  Finance
and Accounting Service (DFAS), his election  of  RCSBP  was  never  deducted
from his retirement or disability pay.  Therefore, he should not  be  forced
to pay an overpayment that was not his  fault  and  granted  the  choice  of
complete termination of the RCSBP.  He will be 78 years old in June, and  at
this late stage in his life receiving cancer treatment,  he  does  not  have
the means to make such an overpayment.

In  support  of  his  application,  applicant  submits  a  letter  from  his
congressman, copies of letters from the Air Force and DFAS, other  documents
relative to the issue.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was honorably discharged from the Massachusetts  Air  National
Guard in the grade of Chief Master Sergeant (CMSGT) effective 11  July  1971
and transferred to the Air Force Reserves and assigned to HQ  ARPC  (NARS-A)
effective 21 July 1971 awaiting retired pay at age 60.  He was  notified  of
his eligibility to participate in the RCSBP on 10 September  1984.   His  DD
Form 1883, Reserve Component Survivor Benefit Plan Election Certificate,
reflects his election of Option C, Immediate Annuity for Spouse  and  Child,
based on full retired pay.  No error occurred  in  processing  his  election
and the Military Personnel Data System reflects  the  correct  election.  In
April 2006  he  received  a  letter  indicating  he  had  been  overpaid  by
$10,606.81 because the RCSBP premiums were not deducted from his  retirement
pay.

_______________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends denial. A member’s RCSBP coverage is not  terminated  or
suspended when a member’s retired pay account is suspended due to  receiving
disability compensation from the Department of  Veterans  Affairs.   When  a
member makes an election to  participate  in  the  RCSBP,  the  election  is
irrevocable.  Title  10,  USC,  Section  1448a  provides  for  discontinuing
participation in the plan any time during  the  one-year  beginning  on  the
second anniversary of the date on which retirement pay commences.  The  one-
year window for the applicant would have been in 1990  when  he  turned  age
62; however, he did not request to terminate RCSBP.

DPP indicates the applicant  made  an  election  under  RCSBP  and  was  not
charged because he did not apply for Reserve retired  pay  when  he  reached
age of 60 in 1988.  Therefore, his Reserve retired pay was  not  established
and he was not billed for the cost of RCSBP premiums. According to Title  10
USC, Section 1452 (d)(1), if a person who  elected  to  participate  in  the
plan has been awarded retired pay and is not entitled to that  pay  for  any
period, that person must deposit in the Treasury the amount that would  have
been deducted from his pay for that period.

ARPC/DPP complete evaluation, with attachments, is at Exhibit C.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force advisory and states he  never  received
notice or information about withdrawing from RCSBP.  He  never  applied  for
retirement in 1988 because the retirement would have  been  negated  by  his
disability compensation.

He received a pay statement in August, September 1988 and the December  1988
pay statement showed the COLA for the retirement and  disability.   He  also
received pay statements in January, February 1990, April 1991, January  1992
and January 1993.  He did not receive another pay  statement  until  January
2003 and it did not reflect an election for SBP.

In 2004 he contacted DFAS to get  information  on  RCSBP  and  he  was  told
someone would contact him with  the  information  he  requested.   He  never
received the information.  Prior to March 2006, he  was  never  notified  he
was required to pay anything for RCSBP.  How was  he  supposed  to  know  he
incurred this debt when he only received pay  statements  and  nothing  else
(Exhibit D).

_______________________________________________________________

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  error  or  injustice.   We  took  notice  of  the  applicant’s
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and the recommendation of  the  Air  Force  and  adopt  its
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error  or  injustice.   The  applicant  is  requesting  his
records be changed to allow him to withdraw his participation in the  RCSBP.
 The applicant made an election under RCSBP in 1984 and was not charged  for
the premiums for RCSBP because he did not  apply  for  Reserve  Retired  pay
when he reached the age of 60.  Title  10  USC,  Section  1452(d)(1),  if  a
person who elected to participate in the Plan has been awarded  retired  pay
and is not entitled to that pay for any period, that person must deposit  in
the Treasury the amount that would otherwise had been deducted from his  pay
for that period.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis to recommend granting the  relief  sought  in  this
application.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of a material error or injustice;  that  the  application  was
denied without a personal appearance; and
that 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  Docket  Number  BC-2006-02034
in Executive Session on 5 October 2006, under  the  provisions  of  AFI  36-
2603:

                             Mr. Michael K. Gallogly, Panel Chair
                             Mr. John R. Hennessey, Member
                             Ms. Kathy L. Boockholdt

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Jun 06, w/atchs.
    Exhibit B.  Letter, ARPC/DPP, dated 28 Jul 06.
    Exhibit C.  Letter, SAF/MRBR, dated 4 Aug 06.
    Exhibit D.  Letter, Congresswoman Brown-Waite, dated
                         21 Aug 06, w/atchs.




                                             MICHAEL K. GALLOGLY
                                             Panel Chair