RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-02922

			COUNSEL:  XXXX XXXX

			HEARING DESIRED:  No
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APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show he elected former spouse coverage in the Reserve Component Survivor Benefit Plan (RCSBP) when he was first eligible.
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APPLICANT CONTENDS THAT:

Section 13 of the divorce decree names C. S. the irrevocable beneficiary of M. S.’s SBP.  Neither party changed coverage to “Former Spouse” due to lack of knowledge, rather than disregard for the SBP or regulation surrounding such plans. 

In support of her appeal, her counsel submits a marriage certificate, divorce decree, former member’s death certificate, DD Form 214, letter from Senator Daschle, and a pay statement from DFAS.

Applicant’s Counsel complete submission, with attachment, is at Exhibit A.
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STATEMENT OF FACTS:

The former member’s record indicates he was eligible for, and receiving Reserve retired pay under the provisions of Title 10, U.S.C., Section 12731, effective on 16 January 1994, his 60th birthday.  The deceased member and applicant married on 7 November 1954 and divorced on 26 January 1995.  The deceased member died on 24 May 2002.

On 5 June 1979, the deceased member elected full coverage for his spouse, under the Reserve Component Survivor Benefit Plan (RCSBP).  When the deceased member applied for Reserve retired pay in January 1994, he was still married to the spouse listed as beneficiary on his RCSBP.  Since he was still married at the time he applied for Reserve retired pay, his RCSBP election was valid.  The Air Reserve Personnel Center Retirement Branch (ARPC/DPPR) properly input the RCSBP date (full coverage for spouse) into the system.

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AIR FORCE EVALUATION:

ARPC/DPP recommended denial of the applicant’s request and stated that the deceased member was in retired pay status and was receiving Reserve retired pay when he divorced in February 1995.  The divorce decree required the former member to name his former spouse the beneficiary under the RCSBP.  By law, Title 10, U.S.C., Section 1448(b)(3), the request to change the RCSBP coverage to former spouse must be received within one year from the date of divorce or Court Order.  In their 3 September 2002 response to Senator Daschle concerning the applicant’s entitlement to a Survivor Benefit Plan annuity, DFAS-CL explained neither the deceased member nor the former spouse requested the coverage be changed within the required one-year period.  DFAS-CL also states the deceased member discontinued paying for RCSBP coverage on 1 February 1995, and had no eligible beneficiary at the time of his death in May 2002.

The one-year window for receipt of the change of RCSBP coverage is by law, and while sympathetic to the former spouse, no error or injustice on the part of the Air Force has been shown.  

ARPC/DPP complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to applicant’s counsel on 22 January 2003 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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. After a thorough review of the evidence of record and applicant’s submission, the majority of the Board is not persuaded that deceased member’s records should be altered so that she would receive an SBP annuity.  The deceased member discontinued paying RCSBP coverage on 1 February 1995, and had no eligible beneficiary at the time of his death in May 2002.  Applicant’s contentions are duly noted; however, the majority of the Board does not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  Therefore the majority of the Board agrees with the recommendation of the Air Force and adopts the rationale expressed as the basis for their decision that the applicant has failed to sustain her burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, the majority of the Board finds no compelling basis to recommend granting the relief sought.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.
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The following members of the Board considered AFBCMR Docket Number 02-02922 in Executive Session on 26 June 2003, under the provisions of AFI 36‑2603:

	            Panel Chair
	            Member
	            Member

By majority vote, the Board recommended denying the application. Mr. Anderson voted to grant correcting the records but he does not desire to submit a Minority Report.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 6 Sept 02, w/atch.
   Exhibit B.  Letter, HQ ARPC/DPP, dated 8 Nov 02, w/atch.
   Exhibit C.  Letter, AFBCMR, dated 22 Jan 03.

                                   

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
				FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:	AFBCMR Application of APPLICANT
		AFBCMR Docket Number 02-02922

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.