RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00793 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: Her former husband’s (decedent) records be corrected to show he made a timely election for spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). ________________________________________________________________ APPLICANT CONTENDS THAT: ARPC advised her that she had all the necessary paperwork; however, the decedent never applied for retirement. In order to collect the retirement pay the Supreme Court granted her, she was told she had to request in writing to have the decision overturned. Due to a bitter divorce she had not spoken to the decedent in several years. He was trying to acquire additional points for retirement; however, he was killed in a car accident. In support of her request, the applicant provides a personal statement, copies of an electronic communiqué, Death Certificate, Marriage Certificate, Military Qualifying Court Order, Divorce Decree, and various other items associated with her request. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _______________________________________________________________ AIR FORCE EVALUATION: AFRC/DPTT recommends denial. DPTT states that the decedent was notified of his eligibility to participate in the RCSBP on 11 Jun 1994 via certified mail. He was married with eligible dependents; however, he did not respond within the 90-day period dictated by law and was automatically covered under Option A, "Declined to make election until age 60." This election is irrevocable according to Title 10, USC, Subsection 1448. On 25 Aug 1994, the decedent and the applicant divorced. The original Judgment of Divorce or amended Judgment of Divorce did not award former spouse coverage under the RCSBP. On 14 Nov 2006, a Qualifying Domestic Relation Order (QDRO) was entered which granted the applicant entitlement to the SBP. On 7 Dec 2006, the Defense Finance Accounting Service Cleveland Center (DFAS-CL) received by mail the original Judgment of Divorce, amended Judgment of Divorce, QDRO and DD Form 2293, Application for Former Spouse Payments from Retired Pay. These documents were never forwarded to ARPC for update. If the documents were provided within the required timeframe, DPTT would have been unable to update the member's RCSBP election due to the member not electing to participate in the Plan when eligible. The decedent passed away from a vehicle accident on 3 Mar 2011. The RCSBP annuity was not afforded to his survivors because he was not participating in the Plan at the time of his death. In accordance with Title 10, USC, Subsection 1448 (a)(2)(B), the member did not elect to participate in the RCSBP program and would have only been offered the opportunity to participate on his 60th birthday, 3 Mar 2014. The complete DPTT evaluation, with attachments, is at Exhibit B. ARPC/JA recommends denial. JA states that ARPC/DPTT's opinion succinctly summarizes the relevant facts. While the applicant’s situation calls for the greatest sympathy and compassion, there is no error or injustice in the processing of her case which would warrant a change to the decedent’s military records. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of her request, the applicant provides two letters. Based on these letters, the Board should see that she had no doubt the decedent’s pension would be awarded to her. As far as she is concerned the Air Force had all the necessary paper work. Moreover, at the time of his death he was in arrears of over $200,000 in child support and alimony. Her complete response, with attachments, is at Exhibit E. _______________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 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, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _______________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 7 Nov 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC-2013-00793: Exhibit A. DD Form 149, dated 6 Feb 2013, w/atchs. Exhibit B. Letter, AFRC/DPTT, undated. Exhibit C. Letter, ARPC/JA, dated 24 Apr 2013. Exhibit D. Letter, SAF/MRBR, dated 25 Apr 2013. Exhibit E. Letter, Applicant, dated 15 May 2013. 1 2