RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-00997 INDEX CODE:	137.04

COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His records be changed to show that he elected to participate in the Survivor Benefit Plan (SBP) when he applied for Reserve retired pay.

APPLICANT CONTENDS THAT:
His record is in error because he made a mistake while filling out the DD Form 2656, Data for Payment of Retired Personnel. It was an honest mistake. He did not think to check the divorce paperwork for any details relevant to retired pay. To allow his error to go uncorrected is unjust as it will place a financial burden upon his former spouse to get the records corrected in accordance with the qualifying court order.

In support of his request, applicant provided a copy of his Reserve Order Number EL-2844, a voluntary separation and property settlement agreement, an amendment to the settlement agreement, a complaint for absolute divorce, an answer to the complaint for absolute divorce, a judgment of absolute divorce and court order, a judgment for restoration of birth name, and a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage.

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

STATEMENT OF FACTS:
The applicant was given an opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP) in 1990 when he was issued his official letter of Notification of Eligibility for Retired Pay at age 60; however, he declined the election even though he was legally married at the time. This election is irrevocable by law (Title 10, U.S.C., Section 1448). Since the applicant declined the original election he was given another opportunity to make an election under the SBP when he applied for pay at age 60.

The applicant was eligible for Reserve retired pay effective on
, his birthday.	He has been drawing retired pay since that date.

AIR FORCE EVALUATION:
HQ ARPC/DPP recommends the application be denied. DPP states the applicant declined to make an election under the SBP when he applied for retired pay in 2005.

The complete DPP evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant states that in 1990, he and his former spouse were separated and going through a mediated but contentious negotiation over the division of their property. In 1991 the voluntary separation and property settlement agreement was signed, and in 1992 they were divorced. In 2005, he mistakenly declined to make an election under the SBP. He admits that in the thirteen years between signing the voluntary separation and property settlement agreement and filing the DD Form 2656, he forgot about the SBP stipulation. Humans are fallible; please do not hold his mistake against his former spouse.

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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After careful review of the applicant’s submission and the evidence of record, we believe that relief is warranted. We note the former member was given an opportunity to participate in the Reserve Component Survivor Benefit Plan (RCSBP) in 1990 when he was issued his official Notification of Eligibility for Retired Pay at age 60 letter, and that he declined the election even though he was married at the time. Although it appears there was no error in this case, as a matter of justice we believe the applicant’s claim that he intended to comply with the court order to provide SBP coverage for his former spouse when he applied for retired pay in 2005.
1.	
Therefore, to comply with the court order and to eliminate any possible injustice to the applicant’s former spouse we recommend that, contingent on recoupment of premiums, the records should be corrected as indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 31 March 2005, he elected former spouse coverage under the Survivor Benefit Plan based on full retired pay, naming XXXXXXXXX as the eligible beneficiary.

The following members of the Board considered AFBCMR Docket Number BC-2008-00997 in Executive Session on 17 Sep 08, under the provisions of AFI 36-2603:

, Panel Chair, 
Member
, Member
All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2008-00997 was considered:

Exhibit A.	DD Form 149, dated 12 Mar 08, w/atchs. Exhibit B.	Letter, ARPC/DPP, dated 24 Apr 08.
Exhibit C.	Letter, SAF/MRBR, dated 9 May 08. Exhibit D.	Letter, Applicant, dated 16 May 08.

Panel Chair