RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-02790
            INDEX CODE:  137.03

            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  18 JANUARY 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show  he  elected  not  to  participate  in  the
Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He incorrectly selected Option A (spouse only  coverage)  on  his   DD  Form
2656, Data for Payment of Retired Personnel, when he  should  have  selected
Option G (elect not to participate) in the SBP program.

Having just received his first retired  pay  statement,  he  recognized  the
error and requests that his records be corrected accordingly.

In support of his request, applicant provided an amended DD Form 2656.

The applicant's complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Air Force OPR states a review of the applicant’s  record  indicates  the
member was notified  of  his  eligibility  to  participate  in  the  Reserve
Component Survivor Benefit Plan  (RCSBP)  in  September  1989.   He  elected
Option C (Immediate Annuity for Spouse and Children), based on full  retired
pay.  The applicant’s spouse died on 25 Sep 97.   Under  the  provisions  of
Title 10, United States Code, (U.S.C.), Section  1448  (a)(6),  an  election
out of the plan by a person with spouse coverage who remarries must be  made
within one year after the person’s remarriage.  On 31 Jan 03, the  applicant
remarried; however, he did not notify ARPC of this change  until  May  2005.
Since the applicant’s notification of remarriage  took  place  more  than  a
year after his remarriage only the name of his spouse could  be  changed  on
the RCSBP election certificate.   The  applicant  applied  for  retired  pay
under the provision of Title 10, U.S.C., Section 12731, effective on 26  Aug
06, his 60th birthday.  His RCSBP election of spouse and children was  input
into the system.  Since this RCSBP election was still  valid  the  applicant
could not make an election on his DD Form 2656 when he applied  for  retired
pay.

By law a member may discontinue participation in RCSBP at  any  time  during
the one-year period beginning on the  second  anniversary  of  the  date  on
which payment of retired pay commences.

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AIR FORCE EVALUATION:

HQ ARPC/DPP reviewed this application and recommends denial.  The  applicant
made an original RCSBP election and did not notify ARPC within one  year  of
his remarriage that he wanted to withdraw from the program  as  required  by
law.  Since his RCSBP election was still valid when he applied  for  retired
pay, he could not make a SBP election on his DD Form 2656.

The DPP evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The rationale for a one year limit  for  a  Reserve  Component  “Grey  Area”
retiree is inappropriate, and to some  degree  discriminatory,  for  several
reasons.

As a “grey area” retiree there are virtually no  unsolicited  communications
between  ARPC,  or  any  other  DoD  agents  as  to  retiree   benefits   or
requirements (specifically, notification  of  re-marriage).   He  was  aware
that it  was  his  responsibility  to  re-enroll  in  DEERS  and  apply  for
retirement pay and did so in a timely manner.  At that point, he  was  asked
to provide evidence of re-marriage.  He retired on 1 Sep  02,  and  was  not
eligible for retiree benefits until 26 Aug 06,  four  years  after  becoming
eligible after  34  years  of  service  and  effectively,  persona-non-grata
during that period.  He should not be held  responsible  for  not  notifying
ARPC of re-marriage within one year as required by law, as he had  not  been
advised of this requirement.  Few of those outside of the  personnel  career
field, would be remotely familiar with this provision of the law.

A further example of the  disconnect  in  communications  that  discriminate
against “grey area” retirees is upon retirement he  was  no  longer  allowed
access to the Virtual MPF,  which  would  have  been  a  wonderful  tool  to
access, for this type of information.  After requesting several records,  as
a retiree via phone and    e-mail, rather than the web; he  discovered  that
the Legion of  Merit,  which  was  awarded  upon  his  retirement,  was  not
recorded.  After several weeks of calls and a number  of  e-mails  requiring
proof of the award, his record was finally corrected.

Applicant's complete response is at Exhibit D.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

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 recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an error  or  injustice.   However,
the applicant will have an opportunity to discontinue participation  in  the
RCSBP at any time  during  the  one-year  period  beginning  on  the  second
anniversary of his receipt of retired pay.  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  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 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-
02790 in Executive Session on 30 January 2007, under the provisions  of  AFI
36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Janet I. Hassan, Member


The following documentary evidence  pertaining  to  Docket  Number  BC-2006-
02790 was considered:

    Exhibit A.  DD Form 149, dated 7 Sep 06, w/atch.
    Exhibit B.  Letter, ARPC/DPP, dated 5 Oct 06.
    Exhibit C.  Letter, SAF/MRBR, dated 13 Oct 06.
    Exhibit D.  Letter, Applicant, dated 17 Oct 06.




                                             KATHLEEN F. GRAHAM
                                             Panel Chair