RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01494 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His former spouse be entitled to the Survivor Benefit Plan (SBP) complying with the terms of the divorce decree and he be reimbursed for SBP premiums paid from 1 Oct 07 to 15 Sep 08 and partial reimbursement for SBP premiums made between 16 Sep 08 to present. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The Air Force Board for Correction of Military Records (AFBCMR) directive awarding his former spouse survivor benefits did not conform to the terms of the divorce decree, effective 15 Sep 08. The applicant believes a series of events led the AFBCMR to an erroneous conclusion regarding implementation of SBP. In support of his appeal, the applicant provides a letter from counsel, dated 14 Apr 10; a copy of the divorce decree, issued 12 Sep 08; a copy of the addendum to the divorce decree, issued 11 Feb 09; a copy of a letter from former spouse, dated 11 Apr 09; extracts of AFBCMR Docket No. BC-2009-01445, and a copy of a letter from the Defense Finance and Accounting Service (DFAS), dated 10 Dec 09. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Based on the available evidence, the applicant elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with immediate annuity for spouse and child coverage, based on full retired pay, on 1 Apr 99. The applicant was relieved from active duty on 30 Sep 07, as a member of the Air National Guard, Title 32, and retired effective 1 Oct 07. The applicant and his former spouse were divorced in Sep 08. The Air Reserve Personnel Center (ARPC) received a copy of the divorce decree as an attachment to the former spouse’s application to the AFBCMR, Docket No. BC-2009- 01445, and her application was accepted as a deemed election. Based upon ARPC’s recommendation, on 15 Jun 09, the Board approved the former spouse’s request to correct the applicant’s record entitling her to RCSBP former spouse coverage, based on full retired pay, effective 12 Sep 08. ________________________________________________________________ THE AIR FORCE EVALUATION: ARPC/DPP recommends the applicant and his former spouse return to civil court to have their original divorce decree amended removing the language requiring SBP cost be deducted from the former spouse’s portion of the applicant’s retired pay. In addition, the applicant’s records be corrected to show at the time of his retirement, he elected SBP coverage for his spouse and children, with a reduced base amount of $2365.00, and that his SBP election be changed to former spouse coverage, effective 1 Oct 07. Based on the applicant’s active duty retirement, his RCSBP election is no longer valid. The applicant’s former spouse went back to court in 2009 and provided a “deemed” election within the required one year time limit. The former spouse claimed she did not sign the declined SBP election form. The deemed election was not processed because the applicant’s SBP election indicated that he declined coverage (at the time of his active duty retirement). The divorce decree states that the former spouse must pay for the cost of SBP coverage. The decree also states that the cost of SBP coverage is to be deducted from her portion of the applicant’s retired pay prior to being issued to her. According to DFAS, the deduction of SBP costs from the former spouse’s portion of the entitlement is not allowed by federal law and is therefore invalid. Additionally, according to DFAS, the Board directed that the former spouse’s RCSBP coverage be created in the applicant’s account; however, this could not be accomplished because RCSBP elections can only be made prior to retirement. The former spouse is not entitled to SBP coverage based on the original divorce decree. The second court document cannot order former spouse coverage based on an invalid RCSBP entitlement. The complete ARPC/DPP evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant and counsel on 2 Jul 10 for review and comment within 30 days. However, as of this date, no response has been received by this office from applicant or counsel (Exhibit D, w/atchs). ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, based on a totality of the circumstances, we agree with the opinion and recommendation of the Air Force Reserve 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 or injustice. In this respect, while we recognize the Board has the authority in extraordinary cases to change the record in those cases with two claimants to an SBP entitlement, we do not find this is one of those cases. On the contrary, we believe that the civil court is the appropriate forum to decide the applicant’s claim and conclude the applicant should return to court to have the original divorce decree amended. In addition, we were not convinced that reimbursement should be authorized at this time. In view of the above and absent evidence to the contrary, we find no basis to recommend granting the relief sought. ________________________________________________________________ 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-2010-01494 in Executive Session on 30 September 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, ARPC/DPP, dated 15 Jun 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 2 Jul 10, w/atchs. Panel Chair