RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01718 COUNSEL HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His 2006 election for spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) be honored. _________________________________________________________________ APPLICANT CONTENDS THAT: On 9 Oct 01, his former spouse forwarded the Qualified Domestic Relations Order (QDRO) requesting former spouse election under RCSBP. On 14 Feb 05, he married his current spouse. On 1 Feb 06, he enrolled her in RCSBP. On 23 Aug 10, he was informed by the Defense Finance and Accounting System (DFAS) that his former spouse had submitted a “deemed election” in 2001. On 5 Oct 10, he requested that DFAS reconsider their decision; however, his request was denied. He was instructed to file for correction of his records through the AFBCMR. On 3 Nov 09, his former spouse forwarded the final Divorce Decree and Amended Decree to DFAS. DFAS does not have the authority to extend the one-year time limit to submit the required court orders for a deemed election. In addition, DFAS does not have the authority to interpret court orders that are ambiguous or assume the missing RCSBP election data. His attorney has provided a legal review and arguments why the Decree and QDRO are deficient for former spouse SBP. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 24 Apr 01, the applicant was divorced. On 28 Apr 01, a copy of his divorce decree was received by the Reserve headquarters. On 15 May 01, he was notified of his eligibility to participate in the RCSBP. His original QDRO dated 4 Oct 01, and Amended QDRO dated 9 Oct 01, states in paragraph 5 “On or before 16 Oct 01, husband shall elect “former spouse” Survivor Benefits Plan coverage for wife. Husband shall name wife as spouse beneficiary under the Survivor Benefit Plan.” On 12 Oct 01, he elected “Option A – defer to make election until age 60.” On 21 Mar 06, he retired. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPTT recommends denial. DPTT states the member and/or his former spouse had one year from the date of the QDRO, dated 9 Oct 01, to make a former spouse deemed election to the Secretary concerned. Notification is forwarded to the Secretary by transmission of the relevant paperwork to DFAS. The Department of Defense (DoD) Financial Management Regulation (FMR) Vol 7B, Chapter 54, para 540602(C)(2)(A) states “The Secretary concerned may deem an election when a member is ordered by a court or voluntarily enters in a written agreement, incidental to a proceeding of divorce, dissolution or annulment to elect former spouse SBP coverage and the agreement has been incorporated in or ratified or approved by the court and the members fails or refuses to make the election.” DPTT notes the former spouse’s attorney submitted a deemed election. A copy of the QDRO was received by DFAS on 16 Oct 01. The normal course of business is for DFAS to forward the documents to ARPC for action; however, there is no record of receipt of the documents. The applicant’s proper status is Option C, Immediate Annuity for Former Spouse, based on full retired pay, effective 9 Oct 01, as dictated by law. DPTT opines the former spouse did in good faith attempt to deem her election but that request appears never to have made it to headquarters for processing. The complete DPTT evaluation, with attachments, is at Exhibit B _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant strongly disagrees with the DPTT evaluation. He states the QDRO does not provide the required “election data” necessary to complete the SBP enrollment form. He was unclear as to the type of annuity and base amount of coverage to elect after reviewing the QDRO with his attorney using the enrollment form instructions. The type of annuity and the definitions were not specified. Full Amount under RCSBP was not implied and no Reduced Amount was specified in the Decree or QDRO. The required election data is on the RCSBP enrollment form and is contained in the FMR. His attorney attempted to complete the RCSBP enrollment form with his former spouse’s attorney. The attempt was refused and his former spouse and her attorney filed a Petition for contempt. On 28 Oct 02, during the Contempt hearing, the Court heard arguments that the assigned benefits of “Fifty percent as of Apr 2000” was ambiguous for both the division of military retirement pay and the SBP election for type of annuity and base amount of coverage. At the time he received the SBP enrollment he was single and elected default coverage for Option A – defer to age 60. Former spouses are not automatically covered beneficiaries under the SBP. A QDRO, naming former spouse coverage, does not afford the same “default” election for full coverage as though he were still married and spousal consent is required for less than full coverage. On 7 Mar 08, his former spouse’s attorney filed a Petition to Require Former Husband to Provide Benefits to Former Wife Equivalent to Surviving Spouse Benefits Under Husband’s Military Pension. He feels this was done because his former spouse did not believe she had been awarded the RCSBP entitlement or had properly deemed it. In addition, the petition was filed well after his election for current spouse. He feels that his former spouse’s attorney failed to secure a SBP deemed election within the one-year time limit. The applicant’s complete statement, with attachments, is at Exhibit D. _________________________________________________________________ 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 note the attorney for the applicant’s former spouse provided a copy of the QDRO to DFAS establishing former spouse coverage within the one year required by law. As such, we find no basis to disturb the record. The applicant’s contention regarding his marital status at the time of his retirement is duly noted; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In addition, the corrective action sought by the applicant is not within the Board’s purview and is a matter that should be decided in Civil Court. 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 6 Mar 13, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-01718: Exhibit A. DD Form 149, dated 3 May 12, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 14 Jun 12. Exhibit C. Letter, SAF/MRBR, dated 19 Jun 12. Exhibit D. Letter, Applicant, dated 17 Jul 12, w/atchs Panel Chair