RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05023 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s record be changed to show he elected spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). APPLICANT CONTENDS THAT: Her former spouse was ordered by the court to provide her with survivor benefit plan coverage under the SBP. She was not given the opportunity to review and sign the ARPC Form 123, Reserve Component Survivor Benefit Plan Election Certificate. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 12 December 1998, the former service member submitted his ARPC Form 123, RCSBP Certificate, electing Option A, “Decline To Make an Election Until Age 60.” During this time, the former service member was married with dependent children. The service member and the applicant were divorced in November 2011. On 12 and 13 January 2015, the AFBCMR marital status affidavits were forwarded to the former military member and the applicant (Exhibit E). The applicant and the former service member responded with a signed and notarized affidavit, which indicates that neither party has remarried (Exhibit F). On 28 January 2015, the applicant and former service member were provided an advisory prepared by SAF/GCM on similar cases considered by the Board. This advisory was forwarded to the applicant and former service member for review and comment within 30 days (Exhibit G). As of this date, this office has received no response. AIR FORCE EVALUATION: ARPC/DPTT recommends approval. DPTT states they should have given the former service member an opportunity to correct the ARPC Form 123 he submitted at the time he made his election. If the Board agrees with the recommendation, the service member’s records should be corrected to show he made an RCSBP election of Option C, “Immediate Annuity for Spouse Only” effective 12 December 1998. Also, his record should be corrected to show he elected “Immediate Annuity for Former Spouse” effective 23 November 2011, the date of divorce. ARPC received and accepted this form as a valid RCSBP election on 16 December 1998. The service member’s form should have been returned to request his spouse’s concurrence as dictated by law. In accordance with U.S.C. Title 10 Subsection 1448 (a) (3) (A) and Section IX on the form, “A married person who is eligible to provide standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan.” ARPC failed to notify the service member to make corrections and updated his election in error. At this time, the service member would have been automatically enrolled in Option A – “Decline To Make an Election Until Age 60.” The court awarded former spouse coverage under the RCSBP. On 22 November 2011, the service member contacted ARPC on the change in his marital status and was informed that he did not make a RCSBP election. He was also advised about RCSBP law constraints and his eligibility to participate in the Plan at age 60. Prescribed by Title 10 U.S.C. Subsection 1448 (a) (2), “A person who is eligible to participate in the Plan and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence) not to participate in the plan before the first day for which he is eligible for that pay.” The service member did not elect to participate in the RCSBP program and would have only been offered the opportunity to participate on his 60th birthday, 19 February 2016. The complete evaluation, with attachments, is at Exhibit B. APPLICANT AND SERVICE MEMBER’S REVIEW OF AIR FORCE EVALUATION: The applicant states that she concurs with the advisory opinion from ARPC/DPTT. Apparently, her former spouse submitted an ARPC Form 123, electing to defer coverage until age 60. He never discussed this form or his election of coverage with her. She submitted every form necessary to receive benefits within the window of time specified. The applicant’s complete response, with attachments, is at Exhibit D. The former service member requests his former spouse’s application be denied. Had he been notified at the time of the election, or any point thereafter, that the election was invalid, he would have taken the appropriate steps to validate. The allegation made by his former spouse that the court ordered him to provide her coverage is not true. He further states that the window of time that his former spouse had to file for the deemed election right to his military retirement SBP expired on 8 June 2012. The service member’s 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 is timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note that the OPR recommends approval, stating the service member’s RCSBP election form should have been returned to request his spouse’s concurrence as dictated by law and the former service member should have given an opportunity to correct the election. However, we note the former service member takes issue with the OPRs recommendation, and requests the application be denied noting had he been notified at the time of the election, or any point thereafter, that the election was invalid, he would have taken the appropriate steps to validate. In cases involving competing interests, this Board has been advised not to consider such cases unless a court of competent jurisdiction has ruled in the case or remands the case to the Board to make a determination. Therefore, since there has been no showing of extraordinary circumstances, we are precluded from granting the former spouse the SBP benefit. Therefore, absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an 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-2013-05023 in Executive Session on 30 October 2014 and 18 March 2015, under the provisions of AFI 36-2603: The following documentary was considered: Exhibit A. DD Form 149, dated 11 October 2013, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 19 December 2013, w/atchs. Exhibit C. Letters, SAF/MRBR, dated 13 June 2014. Exhibit D. Letters, Service Member, dated 1 July 2014, w/atchs and Applicant, dated 11 August 2014, w/atchs. Exhibit E. Letters, AFBCMR, dated 12 and 13 January 2015. Exhibit F. Affidavits, Service Member and Applicant. Exhibit G. Letters, AFBCMR, dated 28 January 2015.