RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00669 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: The record be corrected to reflect a timely election for former spouse coverage under the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: Through counsel, she states she and her former husband were married on 29 March 1972 and divorced on 15 March 1999 at which time they executed a Qualified Domestic Relations Order (QDRO). Her former spouse became eligible to receive his military retirement pay on 23 September 2008 when he turned 60 years old. He received 100 percent of his retirement pay, despite the QDRO which required that she receive a portion of his military retirement pay. Once she became aware that he was receiving retired pay, she sent what she thought was the required information to the Defense Finance and Accounting Service (DFAS). In the spring of 2009, she was notified by DFAS that the language used in the QDRO did not satisfy their requirements and a new QDRO would need to be drafted. In early 2011, she began working with an attorney to draft a new military pension order (MPO). In April 2011, the draft was forwarded to her former spouse (the member) for review and signature. However, no response was received. As such, she was forced to file a motion for contempt in the Superior Court of Connecticut. In May 2011, the Court analyzed the QDRO from 1999 and ordered the parties sign a new MPO. The Court determined the parties intended that she be named as former spouse beneficiary and ordered the parties execute the necessary paperwork. The Court based this decision on the language from the QDRO stating “The rights of the Alternate Payee or her beneficiary to receive benefits from the Plan pursuant to Section III shall not be affected by the death of the Participant.” As instructed a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, was executed. On 17 May 2011, the DD Form 2656-1, along with a certified copy of the MPO, was sent to DFAS. This order should govern the SBP timeline, not the QDRO from 1999 which was deemed invalid by DFAS. She asks the Board consider the element of fairness when making the decision to amend the SBP record. She was unaware of the SBP timelines; unlike her former spouse who had two opportunities to name her as the SBP beneficiary. In any event, when she became aware of the timelines, she did her best to remedy the situation. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s former spouse retired from the Air Force Reserve on 23 September 2008. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of primary responsibility, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: The Defense Finance and Accounting Service states there were no new facts presented to order a correction in the record. In March 1999, when the member and the applicant divorced, neither the divorce decree nor the QDRO required the applicant be named as the SBP beneficiary. In March 2007, the member elected child only coverage under the Reserve Component Survivor Benefit Plan (RCSBP). He retired in September 2008. In 2011, the applicant submitted an MPO dated 16 May 2011, which specified she was to be named as the former spouse beneficiary. This request was denied as this was a pre- retirement divorce and a post retirement order could not be honored to deem former souse coverage as the retiree, at that time, could not make such an election. The complete DFAS evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant submits a copy of a Connecticut Appellate case in which the Appellate court held the trial court had an affirmative duty to issue orders to effectuate the existing allocation of marital property and remanded the case to the trial court. During the contempt hearing in May 2011, this case was cited by the Court as effectuating the agreement of the parties when it ordered that she be named as the former spouse beneficiary. The court stated that it was clear that the parties intended to have her listed as the SBP beneficiary. As such, she submitted the former spouse election within one year of a valid court order. The applicant’s complete response is at Exhibit F. ________________________________________________________________ BCMR LEGAL ADVISORY: The BCMR Legal Advisor opines the QDRO was unclear regarding RCSBP, providing only that the “rights of the applicant…to receive benefits from the Plan…shall not be affected by the death of the service member.” The MPO clarified that the applicant, by consenting to the order, shall not waive any rights she may have as former spouse under the Survivor Benefit Plan and any appeal rights she may have under SBP. Further, the MPO stated to the extent that it is legally permissible, the applicant’s 40 percent share of the service members disposable military retired pay shall not cease if the service member shall predecease the applicant. On the signature page of the MPO, a handwritten paragraph had been added. The handwritten addendum stated that the parties agreed to elect the applicant as former spouse beneficiary under SBP at the full base pay amount. The parties agreed to sign any and all paperwork necessary for this election. This handwritten text was then initialed and dated, ostensibly by the applicant, and service member. There are three issues that require comment: The effect of the handwritten changes to the MPO, the legal effect of the MPO and the absence of a party with competing interest. A previous legal advisory suggested the Board return any documents and request an explanation for the alterations. This allows applicants to explain why the document was altered and allows them to establish substantial compliance with requirements. Secondly, if the Board determines the MPO is sufficient evidence of injustice, the Board can correct the record. DFAS has confirmed pending the outcome of the Board; the corrections can be made to the record. Additionally, there are no competing beneficiaries. The complete BCMR Legal Advisory is at Exhibit G. ________________________________________________________________ APPLICANT'S RESPONSE TO THE BCMR LEGAL ADVISORY: The applicant’ counsel submits he was the attorney of record for the applicant on 16 May 2011 when the MPO was made an order of the court, to include the handwritten amendments on the last page of the document. He certifies the document is valid and legally operative. Additionally, he obtained a certified copy of the MPO from the court on 13 May 2013, which is attached. He further states the handwritten amendment was made prior to the parties signing the document and prior to the court signing the document. Upon initialing by the parties, the Court then signed the document, making it an order of the Court. The applicant’s complete response, with attachment, is at Exhibit I. ________________________________________________________________ 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, we believe corrective action is warranted. The record clearly indicates both parties intended for the applicant to receive this benefit by executing the Military Pension Order in May 2011. In view of the foregoing, and in an effort to offset any possibility of an injustice, we recommend the member’s records be corrected as indicated below. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 17 May 2011, pursuant to a valid court order, he made a timely and effective election of former spouse coverage under the Survivor Benefit Plan (SBP) based on full retired pay. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-00669 in Executive Session on 17 June 2013, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the record, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-00669 was considered: Exhibit A. DD Form 149, dtd 01 Feb 12, w/atchs. Exhibit B. Member’s Master Personnel Records. Exhibit C. Letter, DFAS, dtd 7 Sep 12. Exhibit D. Letter, SAF/MRBR, dtd 7 Sep 12. Exhibit E. Letter, SAF/MRBC, dtd 15 Nov 12. Exhibit F. Letter, Applicant’s Response, dtd, 15 Dec 12, w/atch. Exhibit G. Letter, SAF/MRB Legal Advisor, dtd 10 May 13, w/atch. Exhibit H. Letter, SAF/MRBC, dated 7 Jun 13. Exhibit I. Letter, Applicant’s Response, dtd 10 Jun 13, w/atch. Panel Chair