RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01494 

 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

His former spouse be entitled to the Survivor Benefit Plan (SBP) 
complying with the terms of the divorce decree and he be 
reimbursed for SBP premiums paid from 1 Oct 07 to 15 Sep 08 and 
partial reimbursement for SBP premiums made between 16 Sep 08 to 
present. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

The Air Force Board for Correction of Military Records (AFBCMR) 
directive awarding his former spouse survivor benefits did not 
conform to the terms of the divorce decree, effective 15 Sep 08. 
The applicant believes a series of events led the AFBCMR to an 
erroneous conclusion regarding implementation of SBP. 

 

In support of his appeal, the applicant provides a letter from 
counsel, dated 14 Apr 10; a copy of the divorce decree, issued 
12 Sep 08; a copy of the addendum to the divorce decree, issued 
11 Feb 09; a copy of a letter from former spouse, dated 
11 Apr 09; extracts of AFBCMR Docket No. BC-2009-01445, and a 
copy of a letter from the Defense Finance and Accounting Service 
(DFAS), dated 10 Dec 09. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

Based on the available evidence, the applicant elected to 
participate in the Reserve Component Survivor Benefit Plan 
(RCSBP) with immediate annuity for spouse and child coverage, 
based on full retired pay, on 1 Apr 99. 

 

The applicant was relieved from active duty on 30 Sep 07, as a 
member of the Air National Guard, Title 32, and retired 


effective 1 Oct 07. The applicant and his former spouse were 
divorced in Sep 08. The Air Reserve Personnel Center (ARPC) 
received a copy of the divorce decree as an attachment to the 
former spouse’s application to the AFBCMR, Docket No. BC-2009-
01445, and her application was accepted as a deemed election. 

 

Based upon ARPC’s recommendation, on 15 Jun 09, the Board 
approved the former spouse’s request to correct the applicant’s 
record entitling her to RCSBP former spouse coverage, based on 
full retired pay, effective 12 Sep 08. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

ARPC/DPP recommends the applicant and his former spouse return 
to civil court to have their original divorce decree amended 
removing the language requiring SBP cost be deducted from the 
former spouse’s portion of the applicant’s retired pay. In 
addition, the applicant’s records be corrected to show at the 
time of his retirement, he elected SBP coverage for his spouse 
and children, with a reduced base amount of $2365.00, and that 
his SBP election be changed to former spouse coverage, effective 
1 Oct 07. 

 

Based on the applicant’s active duty retirement, his RCSBP 
election is no longer valid. 

 

The applicant’s former spouse went back to court in 2009 and 
provided a “deemed” election within the required one year time 
limit. The former spouse claimed she did not sign the declined 
SBP election form. The deemed election was not processed 
because the applicant’s SBP election indicated that he declined 
coverage (at the time of his active duty retirement). 

 

The divorce decree states that the former spouse must pay for 
the cost of SBP coverage. The decree also states that the cost 
of SBP coverage is to be deducted from her portion of the 
applicant’s retired pay prior to being issued to her. According 
to DFAS, the deduction of SBP costs from the former spouse’s 
portion of the entitlement is not allowed by federal law and is 
therefore invalid. Additionally, according to DFAS, the Board 
directed that the former spouse’s RCSBP coverage be created in 
the applicant’s account; however, this could not be accomplished 
because RCSBP elections can only be made prior to retirement. 
The former spouse is not entitled to SBP coverage based on the 
original divorce decree. The second court document cannot order 
former spouse coverage based on an invalid RCSBP entitlement. 

 

The complete ARPC/DPP evaluation, with attachments, is at 
Exhibit C. 

 

________________________________________________________________ 

 


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant and counsel on 2 Jul 10 for review and comment within 
30 days. However, as of this date, no response has been 
received by this office from applicant or counsel (Exhibit D, 
w/atchs). 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, based on a totality of the circumstances, we 
agree with the opinion and recommendation of the Air Force 
Reserve office of primary responsibility (OPR) and adopt its 
rationale as the basis for our conclusion the applicant has not 
been the victim of an error or injustice. In this respect, 
while we recognize the Board has the authority in extraordinary 
cases to change the record in those cases with two claimants to 
an SBP entitlement, we do not find this is one of those cases. 
On the contrary, we believe that the civil court is the 
appropriate forum to decide the applicant’s claim and conclude 
the applicant should return to court to have the original 
divorce decree amended. In addition, we were not convinced that 
reimbursement should be authorized at this time. In view of the 
above and absent evidence to the contrary, we find no basis to 
recommend granting the relief sought. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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 AFBCMR Docket 
Number BC-2010-01494 in Executive Session on 30 September 2010, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 


 

 Exhibit A. DD Form 149, dated 17 Mar 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, ARPC/DPP, dated 15 Jun 10, w/atchs. 

 Exhibit D. Letter, SAF/MRBR, dated 2 Jul 10, w/atchs. 

 

 

 

 

 Panel Chair