RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02630

  						COUNSEL:  NONE

APPLICANT: FORMER SPOUSE		HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

She be listed as an entitled beneficiary to her former husband’s Reserve Component Survivor Benefit Plan (RCSBP) annuity.

APPLICANT CONTENDS THAT:

She was married to the former military member for 19 years and per the divorce decree, she was to receive 50 percent of his retirement pension and to be named the death beneficiary of any benefits.  Her former husband filed a motion in late 2008 to disallow her 50 percent of retirement pay but the court upheld the divorce decree and ruled in her favor in May 09.  Since both retirement pay rulings (the one at the time of divorce and again in May 09) were in her favor, any survivor benefit should apply in the same way.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 29 Jun 68, according to the property settlement agreement and the former spouse affidavit, the former military member and the applicant were married.

On 28 Apr 87, according to the former spouse affidavit, the two divorced.  

On 29 Mar 91, according to the Defense Manpower Data Center database, the former military member remarried.  

On 16 Oct 03, according to the Defense Manpower Data Center database, the former military member divorced.

On 1 Dec 06, the former military member was assigned to the retired reserve.  

On 22 Aug 08, the former military member retired and was authorized retired pay.  

On 3 Nov 08, according to the Defense Manpower Data Center database, the former military member remarried.

A person’s eligibility to receive a spouse SBP annuity terminates upon divorce.  However, the law provides two mechanisms for changing spouse coverage to former spouse coverage.  One of the following actions must be taken within the first year following divorce:  (1) the retiree may file an election change, or (2) the former spouse may request the retiree be deemed to have made such a change on his or her behalf.  If the latter case, the former spouse must provide legal documentation showing the member agreed, or the court ordered the member, to establish former spouse coverage.  If neither the member nor the former spouse requests the election change during the one-year eligibility period, former spouse coverage may not be established thereafter.  

AIR FORCE EVALUATION:

DFAS-CL recommends denial indicating there is no evidence of an error or an injustice.  Neither the Property Settlement Agreement of 1 Aug 87 nor the Order On Petitioner's Motion To Clarify The Property Settlement Agreement of 18 May 09 ordered the former military member to establish and maintain former spouse RCSBP coverage for the applicant.  

A complete copy of the DFAS-CL evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that the property settlement clearly states that she be, “named the death beneficiary of one-half of any such proceeds which may be payable pursuant to any National Guard Pension….”  She also feels that her former husband forfeited his right to name his beneficiaries as he wishes per the settlement agreement.  In support of her response, the applicant provides copies of the advisory and other previously submitted court documents.  

A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit E.

FORMER MILITARY MEMBER'S REVIEW OF AIR FORCE EVALUATION:

The former military member refutes his former spouse’s claim and says the request is unlawful and not in accordance with the divorce decree and agreement.  He states that since his former spouse remarried, she is disqualified from being beneficiary of his military retirement pay upon his death.

A complete copy of the former member’s rebuttal 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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case.  The Board agrees with the opinion and recommendation of the Defense Finance and Accounting Service (DFAS) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  In addition, the applicant's submission does not contain a divorce decree addressing her entitlement to former spouse coverage under the SBP.  This is important because 10 USC, Section 1450 requires that when a person required to elect to provide an annuity to a former spouse has failed or refused to do so, such a person shall be deemed to have made an election if the Secretary concerned receives the following a request from former spouse [of the military member], which includes a copy of a court order or other official statement.  Either—(a) a copy of the court order, regular on its face, which requires such a election or incorporates, ratifies, or approves the written agreement of such a person; or (b) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

4.  In view of the fact that the applicant has not provided the documents that would satisfy the requirements above, she has not demonstrated that she would have had adequate standing to render a deemed election had she attempted to do so within a year of the divorce as required by the governing statute.  Furthermore, the Board believes there is a competing interest (the former military member’s current spouse) for the benefit the applicant seeks.  The Board does not grant cases where competing interests exist, except under extraordinary circumstances.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-02630 in Executive Session on 25 Aug 16 under the provisions of AFI 36-2603:

	., Panel Chair
	., Member
	., Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 Jun 15, w/atchs.
	Exhibit B.  Former Member's Master Personnel Records.
	Exhibit C.  Memorandum, DFAS-CL, dated 25 Nov 15.
	Exhibit D.  Letters, AFBCMR, dated 3 Dec 15.
	Exhibit E.  Applicant Rebuttal, dated 28 Dec 15.
Exhibit F.  Former Military Member Rebuttal, dated 9 Dec 15.
	
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.