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AF | BCMR | CY2010 | BC-2009-03741
Original file (BC-2009-03741.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-03741
            INDEX CODE:  137.04
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be entitled to receive  the  Reserve  Component  Survivor  Benefit  Plan
(RCSBP) annuities.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was married to her former spouse for 29 years.  When  they  divorced  in
Nov 89, she was awarded 24 percent of his retirement  pay.   At  that  time,
the court had no authority to order  SBP  coverage  as  part  of  a  divorce
settlement.

In 1983, the Uniformed Services Former Spouses' Protection Act (USFSPA)  was
enacted; however, she was not in contact with  her  former  spouse  at  that
time and she was not aware that the new law  provided  courts  authority  to
order SBP coverage in divorce decrees.  If so, she would  have  taken  legal
steps to have the court order her former spouse  to  elect  coverage  during
the one-time only open enrollment period (Sep 83-84).  If  he  was  notified
of the law, he chose not to provide coverage for her.  She was not asked  to
sign his election form; therefore, if she  did  not  waive  the  opportunity
provided under the law, how can his failure to make an election be the  sole
basis for determining she is not covered under SBP?  Public Law  98-94  gave
all the decision making power to the retired member and none to  the  former
spouse.

Her former spouse came to see her after his second  divorce  and  she  asked
him about SBP.  She learned years later he  was  not  well.   He  was  later
diagnosed with Alzheimer’s which she believes  was  partly  responsible  for
his behavior prior to their divorce.

When he died in 2003, the income from his retired pay  ceased.   She  cannot
understand why Social Security and Tricare  medical  benefits  are  provided
without the consent of her former spouse and yet he had the  sole  right  to
deny her SBP coverage.  Clearly, situations such as hers  led  to  the  need
for the USFSPA.

In  support  of  the  application,  the  applicant  submits   two   personal
statements, copies of her former spouse’s DD Form 214, Armed Forces  of  the
United States Report of Transfer or Discharge, various letters to  and  from
the applicant regarding obtaining former spouse SBP  annuity,  her  marriage
license, retirement order, divorce decree, and death certificate.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 31 Jul 67, the former servicemember was honorably retired  in  the  grade
of major with an effective date and date of rank of 1 Oct  63.   It  appears
no SBP election was made at that time.  In 1972, he elected spouse only  SBP
coverage during an open enrollment period.  The  parties  divorced  in  1980
and coverage was automatically terminated.  Former spouse coverage  was  not
available at that time.  The former servicemember died on 10 Oct 03.

Examiner’s Note:  Although the applicant mention’s a second divorce  by  her
former spouse, the  Air  Force  office  of  primary  responsibility  has  no
information regarding  a  second  marriage  and/or  divorce  by  the  former
service member.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  DPP  states  that  under  the  provision  of
Public Law 98-94, which was enacted on 24 Sep 83, members who  were  already
retired  were  authorized  to  elect  former  spouse  coverage.    An   open
enrollment period was offered from 24 Sep 83 to  23  Sep  84;  however,  the
former servicemember did not make an election during that time.

The complete DPP evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterates much of her earlier contentions and states  SBP  spouse
coverage was deducted from her husband’s  retirement  pay  for  eight  years
from 1972.  Although legally there was no requirement for  her  notification
as a former spouse, there is an “equitable” injustice in the  fact  she  was
unable to respond to the new legislation.

The applicant’s complete response 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.   The  applicant’s  contentions  are  duly
noted; however, we agree with the opinion and recommendation of HQ  ARPC/DPP
and adopt its rationale as the basis for our conclusion that  the  applicant
has not been the victim  of  an  error  or  injustice.   Therefore,  in  the
absence of persuasive  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  on  24
September 2009, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-03741:

      Exhibit A.  DD Form 149, dated 1 Sep 09, w/atchs.
      Exhibit B.  Letter, HQ ARPC/DPP, dated 13 Nov 09.
      Exhibit C.  Letter, SAF/MRBR, dated 20 Nov 09.
      Exhibit D.  Letter, Applicant, dated 8 Dec 09.




                                   Panel Chair

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