RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-03067

							COUNSEL:  

							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The deceased military member’s records be corrected to reflect he made a timely election for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT CONTENDS THAT:

She is the beneficiary of the deceased military member’s SBP annuity, and the funds should be disbursed to her per his wishes.  They divorced amicably in 1993.  She was informed by her former spouse, he elected former spouse coverage on the DD Form 2656, Data for Payment of Retired Personnel, upon applying for retirement in 2003.  

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

STATEMENT OF FACTS:

According to an excerpt from his military personnel record, on 17 Oct 03, the military member retired from the Air National Guard, and was credited with 37 years, 4 months, and 22 days of total service for retired pay.

According to a document submitted by the applicant, the military member passed away on 25 Jul 14.  

On 16 Feb 17, AFBCMR sent the applicant, in care of her counsel, a request for completing, signing, and having notarized an affidavit on marital status.  Additionally, they requested the Release of Benefits affidavit from the legal heir to any arrears of pay of the Survivor Benefit Program (Exhibit C). As of this date, no response has been received by this office.  

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 D.    

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial indicating there is no evidence of an error or an injustice.  The military member made his initial Reserve Component Survivor Benefit (RCSBP) election on 22 Oct 91, electing Option C, “Immediate Annuity”, for “Spouse and Child”.  He then divorced the applicant on 27 May 93.  The military member failed to update his RCSBP election to include his former spouse within one year of the event as prescribed by law.  Although they empathize with the applicant, they recommend denial of relief.  Per Title 10, U.S.C., 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, or annulment.”

A complete copy of the ARPC/DPTT evaluation, with attachment, is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant, via her counsel, refutes virtually every point made by the OPR.  Counsel argues that his client’s case does not apply to the statutory provision sited by the OPR.  Counsel states that at the time of the 1991 designation, the military member was still on military duty and was, therefore, not participating in the SBP program.  He opines the sited statute is actually applicable to those military members who have made certain designations upon retirement, began to participate in the plan, and then wish to make changes to include a former spouse.  Instead, upon the military member’s retirement, his election is governed by 10 U.S.C. § 1448(b) (2), entitled “Former Spouse Coverage Upon Becoming a Participant in the Plan.”  Under this section, upon retirement - and therefore becoming eligible for the Plan – the military member may elect to provide coverage for a spouse or former spouse.  

Counsel states the applicant has a copy of page 3 of DD Form 2656, Data for Payment of Retired Personnel, designating her to receive the military member’s unpaid retired pay.  This document, which refers to the applicant as the military member’s wife, clearly indicates his intentions for the applicant to receive not only any unpaid retirement pay, but also his SBP benefits.  Unfortunately, page 4 of DD Form 2656, which reflects SBP election, is missing from the applicant’s files, DFAS files, and it is not known to exist in the military member’s official records.  In support of the arguments, Counsel provides copies of the NGB Form 22, Divorce Decree, ARPC Form 123, page 3 of DD Form 2656, Certificate of Death, and a blank DD Form 2656.  

A complete copy of the response with attachments, to the evaluation 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, to include the rebuttal; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  In addition to the lack of evidence of an Air Force error or injustice, there is no evidence (lack of affidavits) presented that negates the possibility of competing interests (Arrears of Pay (AOP) concerns) in this matter.  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-2015-03067 in Executive Session on 10 May 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03067 was considered:

	Exhibit A.  DD Form 149, dated 13 Jul 15, w/atchs.
	Exhibit B.  Excerpt, Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 16 Feb 17, w/atchs.
	Exhibit D.  Memorandum, ARPC/DPTT, dated 28 Mar 16, w/atch.
	Exhibit E.  Letter, SAF/MRBR, dated 10 May 16.
	Exhibit F.  Letter, Applicant, dated 6 Jun 16, w/atchs.

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.