RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00202 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated as the beneficiary for her former spouse’s Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ APPLICANT CONTENDS THAT: A divorce decree dated 1 Feb 99, ordered her former spouse that upon his retirement to select a RCSBP option that identified her as the beneficiary. He did not make the election as ordered by the court. She would like RCSBP recorded and added to her file in the event that at some future point she becomes eligible for RCSBP. In support of her request, the applicant provides a personal statement, copies of DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election; DD Form 2293, Application for Former Spouse Payments from Retired Pay; marriage certificate and decree of divorce. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 27 Jul 81, the parties were married. On 1 Feb 99, they were divorced. The divorce decree ordered the applicant’s former spouse that at the time of his retirement to select a SBP plan option that identified her as the beneficiary. The service member never made an election for RCSBP coverage upon completion of 20 years of satisfactory service on 31 Oct 99. Special Order AA-0550 dated 17 Jun 10, shows that the service member was retired from the Air National Guard (ANG) effective 1 Nov 10 in the grade of Master Sergeant (MSgt, E-7). He served 20 years 8 months and 14 days of active duty for retired pay. On 2 Dec 11, the applicant’s request was administratively closed due to pending litigation (Court Case No XXXXXXXXX, Hxxx v Hxxx). On 12 Apr 13, the applicant provided a copy of Court Case No.XXXXXXXX, Hxxx v Hxxx and requested her case be re- opened. The court decree ordered the parties to cooperate in attempting to get the SBP coverage reinstated with the applicant named as the irrevocable beneficiary. _____________________________________________________________ AIR FORCE EVALUATION: The Legal Advisor believes the Board has the authority to render a correction in favor of the applicant who having remarried before age 55 and therefore not being eligible for an annuity under the SBP may nonetheless receive a records correction in her favor. However, the Legal Advisor recommends the Board deny the applicant’s request for failure to carry the burden of proof attesting to the marital status of the applicant’s former husband, the retired service member. The Legal Advisor also draws the Board’s attention to the requirement for the applicant to explain why her failure to file a deemed election within the statutory period of one year from the date of her divorce as required by 10 USC 1450(f)(3)(c) qualifies as an error or injustice. It is the opinion of the Legal Advisor that a decision in favor of the applicant would create an immediate valid property interest. If the retiree is not currently married, then such action by the Board would comply with the guidance from the Office of General Counsel on competing interests. However, before the Board can grant the request, the applicant, who has the burden of proof, would have to verify the absence of a competing interest by providing an affidavit that the retiree has not remarried or other compelling evidence of the retiree’s marital status. In the absence of such evidence, the Legal Advisor recommends the Board deny the application. The Legal Advisor’s complete evaluation is at Exhibit C. _____________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Her request is based on the original divorce document dated 1 Feb 99, which ordered her former spouse to designate her as the SBP beneficiary for her portion of the military pension. Furthermore, the court decree dated 28 Mar 13, named her as the irrevocable deemed beneficiary of the SBP. The parties were to cooperate in attempting to get the SBP coverage reinstated with her named as the irrevocable beneficiary. Her former spouse has been asked to mail a signed affidavit to SAF/MRB confirming his marital status as single. The Legal Advisor’s opinion tries to move the burden of proof to her despite the court orders stating otherwise. Her former spouse is responsible for explaining why he failed to comply with court orders. The applicant’s complete submission, with attachments, is at Exhibit E. ________________________________________________________________ FORMER SPOUSE AFFIDAVIT: In an affidavit dated 7 Jun 14, the applicant’s former spouse under oath states he remarried after his divorce from the applicant but is currently not married. The affidavit is at Exhibit F. ________________________________________________________________ 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. The applicant is requesting that she be designated as the beneficiary for her former spouse’s RCSBP. We note the MRB Legal Advisor stated that before the Board could grant the request, the applicant had to verify the absence of a competing interest by providing an affidavit that the former spouse had not remarried or other compelling evidence of the service member’s marital status. In response to the Legal Advisor’s evaluation, the service member provided an affidavit dated 7 Jun 14, stating that he is no longer married. Accordingly, we find the evidence presented sufficient to correct the record to show that on 31 Oct 99, (the date he completed 20 years of satisfactory service) the service member elected former spouse coverage under the RCSBP based on full retired pay, naming the APPLICANT as the former spouse beneficiary. Therefore, we recommend the record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the SERVICE MEMBER be corrected to show that on 31 Oct 99, he elected former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) based on full retired pay, naming the APPLICANT as the former spouse beneficiary. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2011-00202 in Executive Session on 27 Jun and 7 Jul 14, under the provisions of AFI 36-2603: , Vice Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Jan 11, w/atchs. Exhibit B. Letter, Applicant, dated 12 Apr 13, w/atchs. Exhibit C. Letter, Legal Advisor, dated 10 Apr 14. Exhibit D. Letter, SAF/MRBR, dated 5 May 14. Exhibit E. Letter, Applicant, dated 20 May 14, w/atchs. Exhibit F. Affidavit, Former Spouse, dated 7 Jun 14. Vice Chair