RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00302 (FORMER MEMBER) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s record be corrected to establish that she is his beneficiary under the Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ APPLICANT CONTENDS THAT: She was listed as the beneficiary of her former husband’s retirement during their marriage. It has always been her former husband’s intention for her to continue as his beneficiary as evidenced by the divorce decree. They were unaware of the requirement to submit a deemed election within a year of the divorce. The former member is currently residing at a nursing home and is totally disabled as a result of his Agent Orange exposure during the Vietnam Conflict. She remains his caregiver and healthcare advocate to this day and has power of attorney. They divorced for medical financial reasons and she is requesting that her former husband’s wishes be honored. In support of her request, the applicant provides an expanded statement and copies of a divorce decree, power of attorney, and DD Form 2293, Application for Former Spouse Payments from Retired Pay. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are described in the letter prepared by the appropriate office of the Air Force, which is at Exhibit B. Therefore, there is no reason to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPTT recommends denial, indicating there is no evidence of an error or injustice. The former member was notified of his eligibility to participate in the RCSBP in May 90. He completed his ARPC Form 123, RCSBP Benefit Plan Election Certificate, on 1 May 90 and it reflects his election of Option C (immediate annuity for spouse). On 27 Sep 06, the former member was divorced. The divorce did not award the former spouse coverage under the RCSBP; however, neither the member nor his former spouse deemed an election for former spouse coverage under the RCSBP. According to Title 10, United States Code (USC), 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 divorce, dissolution, or annulment. The member did not request to change his RCSBP coverage within the one year of his divorce from his spouse as required by law; therefore, the applicant’s request should be denied. A complete copy of the ARPC/DPTT evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant indicates her former husband was diagnosed with Parkinson’s disease just after their marriage. Due to the degenerative nature of the disease, it is not implausible the disease may have caused the former member to forget to file the deemed election within the year of the divorce. The applicant reiterates that she continues to function as the former member’s caregiver and provider. Their divorce was a financial decision to protect assets in the face of the inordinate costs of long- term nursing home care for the former member. The applicant continues to arrange for the former member’s care and has Power of Attorney and is now listed as the former member’s guardian for Department of Veterans Affairs (DVA) benefits. In support of her response, the applicant provides an expanded statement and a copy of the divorce decree. In a subsequent statement, the applicant indicates the former member passed away as the result of his disease and indicates that she made all funeral arrangements and payments. She reiterates that she was the person responsible for his entire well-being and it would seem that her name as the RCSBP beneficiary should remain as intended. Once again, her deceased former husband’s condition would have made it difficult, if not impossible, for him to respond to military protocol. In support of her additional submission, the applicant provides an expanded statement and copies of several supporting statements from the deceased former member’s physician and caregivers. A complete copy of the applicant’s responses 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 error or injustice. The applicant contends that her deceased former husband’s Parkinson’s disease impacted his ability to make a timely election for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) within a year of their divorce. After a thorough review of the evidence of record and the applicant’s complete submission, to include her responses to the advisory opinions, we believe that a preponderance of the evidence indicates she is the victim of an injustice. In this respect, we note the statements provided by her deceased former husband’s attending physicians indicating that the progression of his Parkinson’s disease during the matter under review likely compromised his ability to render a timely election for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). Therefore, while we find no evidence of an error on behalf of the Air Force, we believe the evidence is sufficient to find it in the interest of justice to correct her deceased former husband’s military records as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the deceased former member be corrected to show that on 27 September 2006, he elected immediate coverage based on full retired pay under the Reserve Component Survivor Benefit Plan (RCSBP), naming XXX as the former spouse beneficiary. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00302 in Executive Session on 6 Oct 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Nov 10, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 10 Mar 11, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 25 Mar 11. Exhibit D. Letter, Applicant, dated 4 Apr 11, w/atch. Panel Chair