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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