RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02735 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Reserve Component Survivor Benefit Election (RCSBP) be corrected to reflect former spouse coverage. APPLICANT CONTENDS THAT: He incorrectly checked the wrong box on the DD Form 2656, Data for Payment of Retired Personnel, which elected coverage for his current spouse. He spoke with the Air Reserve Personnel Center (ARPC) and offered to make the correction revising his DD Form 2656 and was told by the representative he spoke to she would make the correction. This did not occur. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 2 Jun 76. On 21 May 84, the applicant separated from the Air Force and was credited with 7 years, 11 months, and 20 days of active service. On 22 May 84, the applicant joined the Air Force Reserve. On 4 Dec 97, the applicant elected RCSBP, immediate annuity, Option B, spouse and children, on the ARPC Form 132, Reserve Component Survivor Benefit Plan Election Certificate. According to documentation provided by the applicant, on 2 Dec 02, he divorced. According to documents extracted from his military personnel record (MPR), per special order EK-5124, dated 24 May 04, the applicant was released from his, then, current assignment and assigned to the HQ ARPC Retired Reserve section and placed on the Retired Reserve List on 1 Jul 04, awaiting retirement at age 60 (24 May 14). According to documentation provided by the applicant, On 9 Oct 04, the applicant remarried. On 9 Oct 05, the current spouse became the eligible beneficiary of RCSBP by operation of law. According to documentation provided by the applicant, on 14 Mar 06 (filed 21 Mar 06), a court of competent jurisdiction ordered a “deemed election” with the former spouse as beneficiary, in accordance with Title 10, USC Section 1450 (f) (3). On 23 Mar 14, according to his DD Form 2656, the applicant elected spouse only coverage under the SBP. On 23 Oct 14, SAF/MRBR sent the applicant a request to return a notarized SBP marital status affidavit and SBP release of benefits affidavit within 30 days. In response, the applicant provided the requested affidavit On 23 Oct 14, SAF/MRBR sent the former spouse a request to return a notarized SBP marital status affidavit and SBP release of benefits affidavit with 30 days. In response, the applicant’s former spouse provided the requested affidavit. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: ARPC/DPTT recommends denial indicating there is no evidence of an error or an injustice. The applicant made an original election for “Spouse and Children” coverage under RCSBP on 4 Dec 97. He divorced on 2 Dec 02. Through a court order issued on 14 Mar 06, the applicant was ordered to provide “Former Spouse” coverage under RCSBP. In accordance with Title 10, USC Subsection 1448 (b) (3) (A), “Manner and time of election-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 of annulment.” He did not notify Headquarters Air Reserve Personnel Center (HQ ARPC) of the change within the one year required timeframe. ARPC has no record of notification of the member’s election change within the required timeframe; he is not eligible to elect “Former Spouse” coverage under RCSBP. A complete copy of the ARPC/DPTT evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant did not receive the advisory until February 2015 due to being out of the country in support of missionary work. He had one year from the court order to change his election form. He did his initial election in Dec 97 when he was married to his former spouse. He divorced in 2002. The court order was issued on 14 Mar 06. Since he was not participating in the plan until he was eligible in June 2014 when he reached the age of 60 this rule did not apply to him. He did notify the Air Force of his divorce and doesn’t recall anyone telling him to check into changing his coverage under RCSBP. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an injustice. While we note the comments of ARPC/DPTT indicating that relief should be denied because the applicant did not notify ARPC of his election change within the required timeframe, we believe a preponderance of the evidence substantiates that corrective action is warranted. In this respect, we note the applicant has provided a signed affidavit from his current spouse relinquishing any interest in survivor benefits in favor of the applicant’s current spouse and indicating it is the applicant’s intention to comply with the court order. Therefore, the current spouse relinquishes any competing interest in the right to the RCSBP Benefits as the current spouse. Further, in the interest of public policy, it would be appropriate to honor the parties’ court ordered deemed election to award RCSBP coverage to the former spouse. While there appears to be no error, in balancing the equities in this case, the Board finds it more likely than not the applicant has been the victim of an injustice. Therefore, we recommend the applicant’s records be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that on 22 Mar 06, based on the order of a court of appropriate jurisdiction, his former spouse, made a timely and effective “deemed election” for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP), based on full retired pay, naming his former spouse, as the former spouse beneficiary. The following members of the Board considered AFBCMR Docket Number BC-2014-02735 in Executive Session on 6 May 15, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. Although chaired the panel, in view of her unavailability, due to retirement, has signed as Panel Chair. The following documentary evidence pertaining AFBCMR Docket Number BC-2014- 02735 was considered: Exhibit A. DD Form 149, dated 5 Jul 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, ARPC/DPTT, dated 2 Oct 14. Exhibit D. Letter, SAF/MRBR, dated 23 Oct 14. Exhibit E. Signed Affidavit, Mil Member, dated 3 Nov 14. Exhibit F. Signed Affidavit, Ex-spouse, dated 13 Nov 14. Exhibit G. Applicant Rebuttal, dated 3 Feb 15. Exhibit H. Additional Docs from Appl. dated 26 Nov 14.