RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03778 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her former spouse’s record be corrected to reflect he made a timely election for former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). APPLICANT CONTENDS THAT: She should be named as beneficiary of her former husband’s pension. The Qualified Domestic Relations Order (QDRO) issued in June 1993 required that he elect coverage for his former spouse under the Survivor Benefit Plan (SBP). This error is depriving her of her legal right and violating the court orders. The applicant was not aware of the change until 5 Sep 14, when she was told that her former spouse had filed as single and she was not the beneficiary. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant and the former service member were married on 29 Nov 71. They divorced on 24 Dec 92 per the divorce decree issued by the state of New Jersey. According to the QDRO, issued on 17 June 1993 and incorporated in the Dual Judgment of Divorce issued in the state of New Jersey, submitted by the applicant, the court ordered her former spouse to designate her as the former spouse SBP beneficiary. On 11 Sep 98, the former member retired in the grade of master sergeant (MSgt/E-7). Under Title 10, United States Code, § 1450, if a member is required to elect SBP coverage for his former spouse under the terms of a court order and he “fails or refuses to make such an election,” the member may be deemed to have made the election if the former spouse submits (a.) a written request to establish former spouse coverage, and (b.) a copy of a valid court order which requires that the former spouse be designated as the SBP beneficiary “within one year of the date of the court order or filing involved.” On 23 Sep 14, a copy of the AFBCMR marital status affidavit was forwarded to the former service member to verify if he had remarried. The former member responded with a signed and notarized affidavit dated 2 Oct 14, which indicated he had not remarried (Exhibit B). The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D. AIR FORCE EVALUATION: DFAS/CLVL makes no recommendation, the former member failed to elect former spouse SBP and the applicant also failed to make her deemed election request within one year of the QDRO. The first notice received in the Defense Finance Accounting System (DFAS) was a deemed request from the applicant on 19 Nov 07. However, as both parties failed to act, there would be no objection to correcting the record to show that the applicant submitted a valid deemed election request within one year of the QDRO. A complete copy of the DFAS/CLVL evaluation is at Exhibit C. DFAS/HG stops short of a formal recommendation, but does advise that a deemed election would have been consistent with the state-issued QDRO had the former spouse made a timely deemed election. There is no evidence that the applicant submitted a written request to establish former spouse coverage to either DFAS or to the Air Force within one year of the Dual Judgment of Divorce or within one year of the QDRO. Nevertheless, taken together, it is the OPR’s view that the aforementioned court orders required the former member to designate his former spouse as the RCSBP beneficiary. The property settlement required the member to exercise the 100 percent joint and survivor option for the benefit of the former spouse with respect to her portion of the “husband’s pension with the United States Air Force Retirement Plan.” The QDRO required that once the member’s retired pay started that the former spouse’s direct payments were to be “adjusted to provide full survivor benefits to the former spouse in the period both prior to the commencement of the pension and in the period while the pension is in a pay status.” On 25 Jan 94, the former member was provided a Notification of Eligibility (NOE) for retired pay at age 60. He was unmarried at the time. He did not make any election to participate in the RCSBP. In view of the above, the Dual Judgment of Divorce and the QDRO taken together adequately required that the member designate the applicant as the former spouse beneficiary such that she could have been properly deemed as the former spouse beneficiary if she had made a timely written request. A complete copy of the DFAS/HG evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the former member and applicant on 11 Sep 15 and 21 Oct 15 for review and comment within 30 days (Exhibits E and F). As of this date, no response has been received by this office. 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. While there is no evidence of an Air Force error, we believe a preponderance of the evidence supports corrective action. In this respect, we note and adopt the rationale of DFAS/CLVL and DFAS/HG indicating that pertinent state court documents required the ex-spouse to be designated as former spouse beneficiary; since both parties failed to act, there would be no objection to correcting the record to show that the applicant submitted a valid deemed election request within one year of the QDRO. It should be noted that the respondent was provided an opportunity to address the DFAS advisories yet submitted no substantive response. Additionally, the former member has provided a notarized affidavit that is sufficient for us to conclude that there is not a competing beneficiary that would preclude this Board from recommending correction of the record to reflect that he made a timely election for former spouse coverage. To deny the applicant’s request would be denying her an asset awarded to her by the court, and thus constitute an injustice. Therefore, we recommend the former member’s records be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the MEMBER be corrected to show that on 2 September 1993, his former spouse submitted a valid request for former spouse coverage to be deemed on her behalf under the Reserve Component Survivor Benefit Plan (RCSBP). All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03778 was considered: Exhibit A. DD Form 149, dated 5 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, DFAS/CLVL, dated 23 Sep 14. Exhibit D. Memorandum, DFAS/HG, undated. Exhibit E. Letter, SAF/MRBR, dated 11 Sep 15 Exhibit F. Letter, SAF/MRBR, dated 21 Oct 15.