RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01922
		INDEX CODE: 137.00, 137.01

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he elected former spouse and child as his beneficiaries for his Reserve Component Survivor Benefit Plan (RCSBP).
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APPLICANT CONTENDS THAT:

He was incorrectly counseled to change his original election of former spouse and child coverage to former spouse only coverage.

In support of his request, the applicant submits copies of letters he sent to DFAS, DD Form 2556 (Data for Payment of Retired Personnel), ARPC Form 64 (Reserve Component Survivor Benefit Plan Election Change) and ARPC Form 0-14 (RCSBP Election Statement for Former Spouse Coverage).  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS) reveals that, on 16 July 2001, the applicant’s name was placed on the retired Reserve list. He had completed a total of 24 years, 11 months and 10 days of satisfactory Federal service.

Information extracted from the Automated Records Management System (ARMS) reveals the following.  The applicant’s 28 September 1997 RCSBP Election Certificate reflects his spouse as B--, former spouse as J--- and dependent child as K---, with an election of spouse and child coverage.  His 25 October 2000 Divorce Decree orders B--- as the “sole beneficiary of the Armed Services Survivor Benefit Plan.”  The applicant’s RCSBP Election Change, ARPC Form 64, dated 26 November 2000, and the RCSBP Election Statement for Former Spouse Coverage, ARPC Form 0-14, reflect his former spouse as “B---” with no indication of having dependent children.

On 16 July 2003, the applicant requested that his application be withdrawn.  By letter, dated 18 December 2003, the applicant requested that his appeal be reopened for consideration by the Board.
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AIR FORCE EVALUATION:

HQ ARPC/DPS recommends the application be denied.  DPS states that the applicant was eligible to participate in the RCSBP on 24 April 1997.  He made an election for Option C, an Immediate Annuity for his spouse and child on 28 September 1997.  He was divorced on 21 September 2000 and his election was then suspended.  The applicant did not make a former spouse election within one year of his divorce.  Public Law 99-145 stipulates that the former spouse has one year from the date of the divorce in which to process a “deemed election” to DFAS.  Noncompliance within the provisions of the law excludes the former spouse from all future SBP entitlements.  The applicant nor his former spouse complied with the law.  The HQ ARPC/DPS evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 11 July 2003 for review and response.  As of this date, no response has been received by this office (Exhibit D).
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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request for further review, HQ ARPC/DPS provided the following amended advisory opinion.

HQ ARPC/DPS recommends the application be denied.  DPS indicates that when the applicant accomplished his DD Form 2656, Data for Payment of Retired Personnel, for his benefits at age 60, in Section 26, Block C, he requested children only coverage.  Their legal department states, “Assuming there has been no change to the final divorce decree contained in Atch 2, his sole SBP beneficiary should be B--.  Title 10 USC, Section 1450, prohibits a change in the beneficiary when former spouse coverage is mandated by a court order without the consent of the former spouse.  B--- would have to waive her rights to SBP coverage.”  The HQ ARPC/DPS evaluation, with attachments, is at Exhibit E.
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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and requests that an injustice be corrected.  His daughter, ---, is blind and handicapped.  His detailed statement of the circumstances relating to his SBP election is at Exhibit G.

In support of his request, the applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit G.
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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After careful consideration of applicant’s request and the evidence of record, we agree with the opinion and recommendation of the appropriate office of primary responsibility (Exhibit E) and adopt their rationale as the basis for our conclusion that the applicant has failed to establish the existence of probable error or injustice.  In this respect, we are constrained to note that the applicable statute (10 USC, Section 1450) “prohibits a change in the beneficiary when former spouse coverage is mandated by court order without the consent of the former spouse.”  The applicant’s divorce decree clearly directed the applicant to elect former spouse SBP coverage.  We also note that a deemed election was made within the one-year requirement by applicant’s former spouse, B---, which makes it a valid election.  While we are not unsympathetic to the applicant’s situation, should he provide a notarized statement from his former spouse relinquishing her entitlement to the SBP; or, if a court of competent jurisdiction determines that his daughter is entitled to the SBP benefits claimed, this Board would be willing to review the documents for possible reconsideration.  Otherwise, in view of the foregoing, we find no compelling basis to recommend granting the relief sought in this application.
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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.
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The following members of the Board considered this application in Executive Session on 20 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-01922.

   Exhibit A.  DD Form 149, dated 31 May 03, w/atchs and
               Letters, dated 16 Jul 03 and 18 Dec 03.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/DPS, dated 3 Jul 03.
   Exhibit D.  Letter, SAF/MRBR, dated 11 Jul 03.
   Exhibit E.  Letter, HQ ARPC/DPS, dated 29 Mar 04, w/atchs.
   Exhibit F.  Letter, 1 Apr 04.
   Exhibit G.  Letter from Applicant, dated 29 Apr 04, w/atchs.