RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-00719 INDEX CODE:	137.04
COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
Her former husband’s records be corrected to show that he elected former spouse coverage with election of full immediate coverage (Option CA), based on full retired pay under the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT CONTENDS THAT:
At the time of their divorce she was informed by her husband that all the military procedures would be taken care of. Her husband was in the military the entire 22 years of their marriage.  She trusted he would take care of this.

She was to receive one-half of her former husband’s retirement when he reached the age of retirement. When they divorced, her former husband failed to change the paperwork to former spouse.

Her former husband was still processing the paperwork to change this coverage to former spouse when he passed away of a massive heart attack at the age of 46. His every intention was to change the wording from spouse to former spouse on his SBP.

Experiencing the loss of her children’s father at the age of 46 has been devastating for everyone. She was informed by the military that the findings of her Divorce Decree – were not “worded” correctly – so the retirement issue is null and void.

In support of her request, applicant provided a personal statement, a copy of their divorce decree, with a Second and Third Amended Qualified Domestic Relations Order, a Department of Veterans Affairs (DVA) Rating Decision, her former husband’s death certificate, a DVA Decision on Dependency and Indemnity Compensation (DIC), a DVA claim for Dependents’ Educational Assistance (DEA) program, documents showing his service medals, four (4) DD Form 214’s, Certificate of Release or Discharge from Active Duty, her former husband’s obituary, a letter from the commander of the Air Force Reserve Command, and various photos.

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

STATEMENT OF FACTS:

On 20 Oct 99, the former member was notified of his eligibility for retired pay at age 60 and that he was eligible  to participate in the RCSBP. On 24 Feb 00, he executed ARPC Form 123, Reserve Component  Survivor Benefit Plan Election Certificate, electing spouse and child coverage, under Option B (Deferred Annuity), based on full retired pay.

The former member and the applicant were married on 8 Jan 82. The parties divorced on 20 Oct 04. He died on  Dec 06, prior to his 60th birthday.

AIR FORCE EVALUATION:
HQ ARPC/DPS reviewed this application and recommends denial.
By law, an RCSBP election is irrevocable unless there is a change in marital status. If a member loses his spouse by divorce, he has one year from the date of divorce to elect to change his election to former spouse coverage.

The member was divorced in 2004. However, neither the member nor his former spouse notified their office about the marital status change within a year as required by law. According to Title 10, U.S.C., Section 1448 (3)(A)(iii), any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.

The member went back to court on 26 Sep 06 to file an amendment to their divorce decree which awarded the applicant $514.84 of the member’s military retired pay upon eligibility to draw retired pay. However, the member died prior to his 60th birthday on  December 2006.

A complete copy of the evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In her response the applicant stated she was not aware that her husband had not taken care of this matter. Once she became aware of the oversight, she acted immediately.

Regarding the Air Force evaluation she states the following:
Under Paragraph 3(a) – She was never informed her husband had one year to change the election from spouse to former spouse. When it was brought to her attention she immediately contacted her former husband’s lawyer, who took the information to the Circuit Court Judge.

Under Paragraph 3(b) – Being the ex-spouse of a military member, she was not aware that it was her responsibility to inform the Air Force that the military member had divorced his wife of 22 years. She provided a copy of their Qualified Domestic Relations order, that allowed her as the former spouse, to be covered under her former husband’s RCSBP, along with his children, for full and immediate coverage as of the date of their divorce, 20 Oct 04.

Under Paragraph 4 – The amendment to the divorce decree in Sep 06 concerns money she would receive from her  former husband’s retirement, but there is also another amendment that was signed by the Judge concerning the RCSPB.

Under Paragraph 5 – The Judge signed a “third” Amended Qualified Domestic Relations Order, stating that she was to be covered immediately on the date of their divorce, 20 Oct 04.

Their divorce papers stated she was to receive half of her former husband’s military retirement. Tragically he died at the age of 46 of a massive heart attack, and once he passed away, the retirement was no longer an issue, but the RCSBP is.

She realizes this was not handled in the “year” timeframe, but she was not aware that her former husband was not handling this matter. Due to  all the paperwork they were filling out concerning the “retirement” issue, the Survivor Benefit Plan paperwork did not get changed as quickly as it was supposed to have been done.

The order signed by the Circuit Court Judge should satisfy the former spouse requirement, and she should be listed on her ex- husband’s RCSBP.

Applicant's complete response, with attachments, 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 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 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. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
1.	
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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 Docket Number BC-2008-00719 in Executive Session on 26 Jun 08, under the provisions of AFI 36-2603:

, Panel Chair, 
Member
, Member
The following documentary evidence pertaining to Docket Number BC-2008-00719 was considered:

Exhibit A.	DD Form 149, dated 4 Feb 08, w/atchs. Exhibit B.	Letter, ARPC/DPP, dated 24 Mar 08, w/atchs. Exhibit C.	Letter, SAF/MRBR, dated 18 Apr 08.
Exhibit D.	Letter, Applicant, dated 29 Apr 08, w/atchs. Exhibit E.	Letter, Senator Thune, dated 29 Apr 08, w/atchs.

Panel Chair