RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00171 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ THE APPLICANT REQUESTS THAT: His former spouse be entitled to benefits under the Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He completed his paperwork for the RCSBP according to what he was told after receiving his 20-year letter; however, in Mar 2010, when completing his paperwork to apply for Reserve Retired pay at age 60, the Defense Finance and Accounting Service (DFAS) told him that his former spouse was not entitled to SBP. In support of his appeal, the applicant provides a copy of his former spouse’s letter from DFAS denying SBP entitlement and the applicant’s RCSBP paperwork. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The member was notified regarding his eligibility to participate in RCSBP via letter 23 May 1995. Records show that he completed his ARPC Form 123, RCSBP Election Certificate, and it reflects his election of (Option C), immediate annuity for spouse and children effective 14 August 1995. By law, the RCSBP election is irrevocable. The applicant divorced on 31 January 2005. The divorce awarded former spouse coverage under RCSBP. However, neither the applicant nor his former spouse deemed an election for former spouse coverage under the RCSBP and the applicant's RCSBP election changed to children only. According to Title 10, United States Code (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 AIR FORCE EVALUATION: ARPC/DPTT recommends denial, stating, in part, the applicant and his former spouse failed to deem an election for former spouse coverage in accordance with Title 10, U.S.C., Section 1448. If the decision is to grant the relief sought, the applicant's records should be corrected to show that he elected former spouse coverage effective 13 December 2004. In 2010, the applicant was sent a letter notifying him that he was eligible to apply for Reserve retired pay effective 30 June 2010, his 60th birthday. Included with the letter was general information regarding retired pay, the applicable forms, and information regarding his RCSBP election option "C for child only." When the member filled out his application for retired pay, DD Form 2656, he made an election for former spouse. Records indicate that his retired pay order was published, and his case was forwarded to DFAS prior to his 60th birthday where his retired pay account was established. However, this election was not valid because it was not made within the one year of the divorce as required by law. In a letter dated 7 October 2010, the applicant’s former spouse was advised by DFAS that the request for former spouse coverage had exceeded the year required by law. Since the statutory filing deadline had expired, an election of former spouse coverage could not be deemed to have been made and former spouse coverage will not be implemented. The complete ARPC/DPTT evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 18 Feb 11 for review and comment within 30 days. As of this date, no response has been received by this office (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 error or injustice warranting corrective action. We note the comments of the Air Force Reserve office of primary responsibility and their opinion and recommendation; nonetheless, while we cannot conclusively determine why the applicant did not submit a change for former spouse coverage at the appropriate time, what is clear is that it was his intent to comply with the law and the court order. In addition, we note that this Board has rendered similar decisions when there is not a competing spouse in the case and retroactive enrollment in the RCSBP would not provide the applicant a monetary advantage. Therefore, in view of the above and in the absence of evidence to the contrary, we recommend the applicant’s record be corrected to the extent 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 30 January 2006, he elected former spouse coverage, Option C, immediate coverage, under the Reserve Component Survivor Benefit Plan (RCSBP) based on full retired pay. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00171 in Executive Session on 1 September 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 Jan 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPTT, dated 16 Feb 11, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 18 Feb 11. Panel Chair