RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01862 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her former spouse’s records be corrected to show he made a timely election for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her attorney did not file the DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election, within one year of their divorce. She was not aware that there was a form she had to file. She wants to file the DD Form 2656-10 to obtain the RCSBP deemed in their Final Divorce Decree and Domestic Relations Order. She was married to the service member for 40 years. At the time of his discharge from the Air Force her husband elected to invoke the RCSBP, and at the time of the divorce their divorce decree ordered this to be upheld. This was a long marriage. She raised their two children and has no other retirement plan. In support of her request, the applicant provides copies of DD Form 2656-10, Final Decree of Divorce, Domestic Relations Order [Military Retirement], letters from her attorney, letters from the Defense Finance and Accounting Service (DFAS) and numerous other documents in support of her request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force Office of Primary Responsibility (OPR). Accordingly, there is no need to recite these facts in this Record of Proceedings. _______________________________________________________________ AIR FORCE EVALUATION: HQ ARPC/DPTT recommends denial. DPTT states the member was given an opportunity to make an election under the RCSBP on 7 Apr 1995 when he was issued a letter notifying him of “Eligibility for Retired Pay at age 60.” On 15 Jul 1995, he made an election for Option C, immediate annuity for "spouse and children." The member’s record reflects that he was married and had dependent children during this time. The member and his spouse divorced on 26 Aug 2010. A final divorce decree was issued along with a Qualified Domestic Relation Order (QDRO), dated 2 Sep 2010. Paragraph 8 of the QDRO states in part, "It is further ordered that the service member shall elect to designate his former spouse as a former spouse beneficiary. To the extent the service member fails or otherwise refuses to cooperate in filing the documents required to elect to designate a former spouse beneficiary of the SBP, the Former Spouse is directed to apply for entitlement to be deemed a former spouse by contacting the DFAS Legal Department, notifying the court of deemed election pursuant to Title 10 U.S.C. Section 1447, and sending a certified copy of this order to U.S. Military Annuitant within one year of the date this QDRO is signed, or former spouse interest therein may, if not will, be forever barred." DFAS would then forward any such document to ARPC for action. DPTT has no record of receiving these documents from DFAS or from the member or the applicant. The applicant acknowledged that her attorney did not mail a copy of this QDRO to DFAS within the designated timeframe dictated by law. The complete DPTT evaluation, with attachments, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 27 Jul 2012, copies of the Air Force evaluation were forwarded to the applicant and the service member for review and comment within 30 days (Exhibit D). The former member responded and agrees with the advisory opinion that the responsibility to submit the required document was not met in the time period as established by law and he believes there were no extenuating circumstances to prevent this. He also wanted the opportunity to correct his ex-spouse’s statement that she "has no other retirement plan." In addition to serving in the military he also worked many years in the civilian sector and contributed to the Social Security system. His ex-spouse will be eligible for Social Security benefits based on his income when she turns 62 years of age. According to the QDRO, she was awarded 50 percent of the retirement from his civilian employment. In addition, she has been receiving 43.6 percent of his retired military pay since he turned 60 on 14 Sep 2011. The member’s complete response, with attachment, 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 injustice. There is no evidence of Air Force error; however, to preclude an injustice, we find the evidence provided is sufficient for us to recommend granting the requested relief. After thoroughly reviewing the evidence of record, we believe that the member’s records should be corrected to reflect that he elected former spouse coverage under the RCSBP within the required timeframe. To deny the applicant's request would be denying her an asset awarded to her by the court as a result of the divorce. In view of the foregoing, we recommend his records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to MEMBER be corrected to show that on 2 Sep 2010, he elected former spouse and child coverage under the RCSBP, based on full retired pay, naming his former spouse as the eligible beneficiary. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 19 Dec 2012, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2012- 01862: Exhibit A. DD Form 149, dated 21 Mar 2012, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 25 Jun 2012, w/atchs. Exhibit C. Letters, SAF/MRBR, dated 27 Jun 2012. Exhibit D. Letter, Member, dated 21 Jul 2012, w/atchs. Panel Chair