RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03278

XXXXXXXXX (DecEASED)	COUNSEL: NONE

XXXXXXXXX (APPLICANT)	HEARING REQUESTED: YES 
	
APPLICANT’S REQUEST

Her deceased former spouse’s election of benefits under the Reserve Component Survivor Benefit Plan (RCSBP) be changed.  Specifically, to convert spouse coverage to former spouse coverage.  

APPLICANT’S CONTENTIONS

Her former spouse wanted her to have coverage under his Survivor Benefit Plan (SBP).  However, DD Form 2656- 10, SBP Request for Deemed Election, was not submitted within one year of their divorce. They were married for 33 years - 30 of those years were while he served in the Air Force. He listed her as his beneficiary in his Last Will and Testament and the divorce decree. There is a provision in the court ordered agreement that required her former spouse to make a former spouse election. At the time of her former member’s retirement and their divorce, he was seeking treatment for severe alcoholism and was not in the condition or state of mind to submit or update the appropriate document.
 
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is the former spouse of an Air Force Reserve master sergeant (E-7) who died while awaiting retired pay at age 60.

On 14 November 1984, according to a Certificate of Marriage, provided by the applicant, she and her former spouse were married.

On 31 January 2007, ARPC/DPTT sent the deceased service member the standard notification of eligibility for retired pay (20-year letter) informing him that he has completed the required years under the provisions of Title 10 United States Code, Section 12731 (10 U.S.C. § 12731), and entitled to retired pay upon application prior to age 60.  In addition, he was eligible to participate in the RCSBP and should receive detailed RCSBP information by certified mail within 60 days.  The RCSBP information included instructions to reply within 90 days of receipt.  The letter included an attachment with information on RCSBP and instructions to reply within 90 days of receipt.  

On 21 March 2008, according to PS Form 3811, Domestic Return Receipt, an RCSBP package was delivered to the applicant’s address and was signed.

On 15 October 2016, according to Reserve Order DK-4765, dated 17 August 2016, the applicant was assigned to the Retired Reserve Section and placed on the Air Force Reserve Retired List, awaiting pay at Age 60.  

On 25 July 2017, the applicant and her former spouse divorced.  The divorce decree required the service member provide former spouse coverage.  

On 18 June 2020, the service member passed away.

On 19 January 2021, the Board sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP Marital Status Affidavit (Former Spouse); SBP Release of Benefits Affidavit (Arrears of Pay).

On 30 March 2021, the applicant provided a signed/notarized affidavit dated 19 March 2021, which states she is not currently married, did not marry before age 55, and that her former spouse had not remarried.  According to the notarized SBP Release of Benefits (Arrears of Pay) Affidavit, dated 19 March 2021, the applicant swore/affirmed that she is the former member’s legal heir.

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

ARPC/DPTT recommends granting the application. RCSBP extends eligibility, of the SBP to Reserve Component members, who would otherwise be eligible to receive retired pay, except they have not yet reached retirement age. RCSBP allows members to provide an annuity based on their retired pay, to qualified survivors upon the death of a member. Members of the Air Force Reserve and Air National Guard are sent a certified letter of their eligibility for RCSBP and an explanation of the program and guidance on making elections. 

In accordance with DoDI 1332.42, Survivor Benefit Plan, paragraph 5.2 a (1), A member who elected spouse coverage upon becoming eligible to participate in SBP or RCSBP, and later divorces, may elect to cover that former spouse (who was not the member’s former spouse at the time the member became eligible to participate) within 1 year after the date of decree of divorce, dissolution, or annulment. The former member did not submit DD Form 2656-1 Survivor Benefit Plan Election Statement for Former Spouse Coverage, electing coverage for the applicant within 1 year of the divorce. 

In accordance with DoDI 13332.42, paragraph 5.5. (b), Posthumous Deemed Former Spouse Election, A former spouse may only seek a deemed former spouse election after the death of a retired participant if the original court order or written agreement filed with a court in accordance with applicable State law, subsequent to a proceeding of divorce, dissolution, or annulment before the member’s death, specified former spouse coverage.

On 31 August 2006, the former member completed the required years of service under the provisions of 10 U.S.C. § 12731 to be entitled to retired pay upon attaining age 60.  On 21 March 2007, the deceased service member signed PS Form 3811, Domestic Return Receipt, which contained the notification of eligibility to participate in RCSBP and election materials. He did not return documentation with his desired election within the 90-day timeframe prescribed by law; therefore, he was automatically enrolled based on his eligible beneficiaries, which resulted in Option C, Provide an immediate survivor annuity beginning on the day after death for spouse and child, effective 21 June 2007.  The applicant’s youngest child, born 21 February 1990, lost eligibility on 21 February 2012. 

On 25 July 2017, the applicant and the former member were divorced. According to the final divorce decree and a qualified domestic relations order in the applicant’s personnel record, a provision to provide former spouse coverage was ordered by the court. “The parties further agree that husband will maintain wife as the “spousal survivor (death) benefit designee pursuant to statute” 
The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 8 June 2021, for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of ARPC/DPTT and finds a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to MEMBER be corrected to show that:

	a. On 25 July 2017, he submitted a timely and effective election for former spouse coverage under the Reserve Component Survivor Benefit Plan, based on full retired pay, naming APPLICANT as the eligible beneficiary,
	
b. On 18 June 2020, APPLICANT submitted a timely and effective claim for survivor benefit annuity.

c. Approval should be contingent upon recovery of Reserve Component Survivor Benefit Plan premiums.  If applicable, the monthly survivor benefit annuity will be applied to the premium debt until the total amount of premiums owed is recovered.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-03278 in Executive Session on 22 July 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 March 2021.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, ARPC/DPTT, dated 8 June 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 June 2021.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.