RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-01046 XXXXXXXXXX (DECEASED) APPLICANT: XXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be entitled to benefits under the Survivor Benefit Plan (SBP). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He and his late ex-spouse agreed to enroll in SBP for each other, in accordance with the divorce decree. At his retirement, he enrolled in SBP as they had agreed; however, when she reached retirement eligibility in the Air Force Reserve, she declined SBP. He contacted the Air Reserve Personnel Center (ARPC) several times in regard to SBP enrollment and was advised to “take no action to complete my entitlement to my wife’s SBP or pension because she was not eligible for retirement!” The essence of the case is that ARPC and the Defense Finance and Accounting Service (DFAS) believes that he did not make a proper “Deemed Election for SBP” from his late ex-spouse in 1992 and 1993 following their divorce; therefore, he is not entitled to SBP. He submitted a correction of record request in 2007; however, it was returned because she did not sign the DD Form 149, Application for Correction of Military Record, dated 28 Mar 07. In support of his appeal, the applicant provides a copy of his ex-spouse’s death certificate, dated 5 Jan 10; his SBP Election Certificate, dated 5 Sep 90; an extract from the parties divorce decree; a copy of the original BCMR application and a congressional inquiry. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant and the decedent divorced in Apr 92. The decedent completed the eligibility requirement for Reserve retirement on 26 Sep 95. At that time she was given an opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP); however, she declined the coverage. In 2002, she was eligible for Reserve retired pay at age 60; however, when she applied for Reserve retired pay, she elected not to participate and since she was not married, the declination was accepted and DFAS’s pay system was updated. The decedent died on 24 Dec 09 and did not have an SBP election on file at the time of death. ________________________________________________________________ THE AIR FORCE EVALUATION: ARPC recommends denial, stating, in part, the court document the applicant provides is vague on the SBP issue and does not mention the retired pay at all. By law, a member is not eligible to make a RCSBP election until the completion of the service requirements for Reserve Retired pay. The applicant and the late former member were divorced in Apr 92. At the time of divorce, the member was not eligible to make a RCSBP election since she had not completed the service requirement for Reserve retirement. When the applicant contacted DFAS in 1994, the member was still not eligible for Reserve Retired pay; therefore, the member could not make a RCSBP election. When the member completed the requirements for Reserve retirement, she declined coverage. The divorce decree, the applicant provides, is not clear on the SBP issue and does not specifically state the member must make a RCSBP or SBP election for her former spouse. The applicant claims he was given incorrect information regarding applying for a portion of the retired pay. ARPC is not the office of primary responsibility (OPR) for the division of retired pay. However, the DFAS letter, dated Feb 94, indicates his request for a division of retirement pay under the Uniformed Services Former Spouses’ Protection Act cannot be honored is accurate. The applicant also claims he was given incorrect information regarding application for his ex-spouse’s SBP. They state that deemed elections must be submitted within one year of the date of divorce. However, they have no record the applicant submitted a deemed election within one year of the divorce. A complete copy of the evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant indicates the advisory opinion from ARPC (first page) is correct except for para 2d, which should read that he was told several times that he did not need to take any action following his divorce to protect his right to SBP or his 30 percent award of his late ex-spouse’s eventual pension. In para 3C, he notes that ARPC and DFAS did not find the divorce decree deficient in any way when they initiated SBP for his ex- spouse and charged his pension account for the cost. When he contacted ARPC because he thought the divorce decree awarded an excessive amount to his ex-spouse, he recalls them indicating that nothing could be done. He has paid at least $50,000.00 over the last 19 years in SBP premiums for his ex-spouse and did it in good faith at his retirement and upon their divorce. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. After a careful review of the applicant’s complete submission, the majority of the Board believes there was some confusion as to when the applicant could apply for the former member’s survivor annuity. It appears he was under the impression he had to wait until the former member’s 60th birthday, more than nine years after the divorce, before he could apply for survivor annuity. Consequently, the applicant did not submit a deemed election within one year of the divorce. In view of this, the Board majority believes it would be an injustice to deny the applicant the survivor benefits he is entitled and awarded by the court. Based on the foregoing, the Board majority believes any doubt should be resolved in the applicant’s favor and recommends that the records be corrected as indicated below. ________________________________________________________________ RECOMMENDATION OF THE BOARD: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 27 January 2002, she elected Survivor Benefit Plan (SBP) former spouse coverage, based on the full retired pay, naming XXXXXXX as former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2007-01046 in Executive Session on 19 January 2011, under the provisions of AFI 36-2603: By a majority vote, the Board voted to correct the record, as recommended. XXXX voted to deny the request and did not desire to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPP, dated 23 Jun 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 16 Jul 10. Exhibit E. Letter, Applicant, dated 7 Aug 10, w/atchs. Panel Chair