RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01230

(MEMBER)	COUNSEL: NONE
	
 (APPLICANT)	HEARING: NO 

APPLICANT REQUESTS THAT:

Her former spouse’s Reserve Component Survivor Benefit Plan (RCSBP) be changed from “spouse only” to “former spouse only”.

APPLICANT CONTENDS THAT:

She was not aware of the requirement to redeem her RCSBP benefit within one year of her divorce.  She assumed her former husband was responsible for updating his RCSBP election based on their divorce decree.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 24 Apr 81, according to the applicant, she and the member were married, as evidenced by Domestic Relations Order, NO. 2006-CI-07968.

On 1 Nov 00, the member was notified he completed the required years of service under the provisions of Title 10. U.S.C. Section 12731, and upon application at age 60 (26 Oct 15), he would be entitled to receive retired pay.

On 1 Jan 01, the member made an initial Reserve Component SBP (RCSBP) election of Option C, “Immediate Annuity” for “Spouse Only” as indicated on ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate.  

On 5 Mar 08, the member and the applicant divorced.  The Domestic Relations Order directed the member to immediately designate his now former spouse as the “former spouse beneficiary under the Armed Forces Survivor Benefit Plan” and that she would continue to remain the beneficiary as the former spouse under his plan.  The Automated Records Management System (ARMS) shows the court document was uploaded on 11 Jul 08.

On 26 Oct 15, the member was placed on the Air Force Retired list with retired pay under Reserve Order EL-1225, dated 23 Dec 15 and credited with 31 years, 4 months and 23 days of total service.

On 12 Dec 15, the member elected not to participate in the SBP and his current wife, whom he married on 3 Mar 11, concurred as indicated on DD Form 2656, Data For Payment of Retired Personnel.  Additionally, the member designated his current spouse and dependent child as beneficiaries for unpaid retired pay or arrears of pay (AOP).

The Affidavits provided by the applicant, indicate the applicant and the member were married on 24 Apr 81 and divorced on 5 Mar 08 and she (applicant) is the legal heir to the member’s Arrears of Pay (AOP) of the SBP, she is not currently married and the member is currently married, as evidenced in the SBP – Marital Status Affidavit, dated 16 May 16.  (Exhibit E)

On 4 Jan 18, the Board sent a follow-up request to the applicant for additional affidavits, as the wrong affidavits were initially mailed.  The applicant returned the “former spouse” affidavit only, dated 9 Feb 18, but did not return the “retiree” nor the “release of benefits current spouse” affidavits.  (Exhibits G and H). 

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

ARPC/DPTT recommends granting the application.  The member made an initial RCSBP election of Option C, “Immediate Annuity” for “Spouse Only” effective 10 Jan 01.  The member and the applicant then divorced on 19 Jan 07 [SIC].  According to the divorce decree, it was ordered that the member elect his former spouse as the beneficiary for SBP to include RCSBP if applicable.  The divorce decree was submitted and included in the member’s records within a year of the judge’s signature.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 6 Sep 16 for comment (Exhibit D), but has received no response.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an injustice.  While the Board notes the comments of ARPC/DPTT indicating that relief should be granted, the Board believes a preponderance of the evidence fails to substantiate the applicant’s contentions.  We also note that this is a competing interest case.  By operation of law, the member’s current spouse became the eligible SBP beneficiary on the one-year anniversary of their marriage since no action was taken to elect former spouse SBP coverage by the member or the applicant.  Although the Board has the authority to change SBP records, only in the most unique of circumstances would the Board make a ruling on a case that involves two claimants to a benefit that only one of them can receive.  However, if the legal beneficiary submits a notarized statement relinquishing her entitlement to the SBP, the Board may be willing to reconsider the applicant’s appeal in consideration of this evidence.  Therefore, the Board recommends against correcting the member’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed that the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5., considered AFBCMR Docket Number BC-2016-01230 in Executive Session on 27 Apr 17 and 24 Apr 18:

	Panel Chair
	Member
	Member

The panel considered the following:

	Exhibit A.  Application, DD Form 149, w/atchs, dated 23 Mar 16.
	Exhibit B.  Documentary evidence, including relevant excerpts from official records.
	Exhibit C.  Request for Affidavits, AFBCMR to applicant, dated 27 Apr 16.
Exhibit D.  Advisory opinion, ARPC/DPTT, dated 11 May 16.
Exhibit E.  Affidavits, Applicant to AFBCMR, dated 16 May 16.
	Exhibit F.  Notification of Advisory, AFBCMR to applicant, dated 6 Sep 16.
	Exhibit G.  Request for Additional Affidavits, AFBCMR to applicant, dated 4 Jan 18.
Exhibit H.  Affidavit, Applicant to AFBCMR, dated 9 Feb 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.