RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                   DOCKET NUMBER: BC-2011-00202	
		  		   COUNSEL:   
   	   			   HEARING DESIRED:  NO
   

________________________________________________________________ 

APPLICANT REQUESTS THAT:

She be designated as the beneficiary for her former spouse’s 
Reserve Component Survivor Benefit Plan (RCSBP).  

________________________________________________________________ 

APPLICANT CONTENDS THAT:

A divorce decree dated 1 Feb 99, ordered her former spouse that 
upon his retirement to select a RCSBP option that identified her 
as the beneficiary.

He did not make the election as ordered by the court.  She would 
like RCSBP recorded and added to her file in the event that at 
some future point she becomes eligible for RCSBP.

In support of her request, the applicant provides a personal 
statement, copies of DD Form 2656-10, Survivor Benefit Plan 
(SBP)/Reserve Component (RC) SBP Request for Deemed Election; DD 
Form 2293, Application for Former Spouse Payments from Retired 
Pay; marriage certificate and decree of divorce.

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

________________________________________________________________ 

STATEMENT OF FACTS:

On 27 Jul 81, the parties were married.

On 1 Feb 99, they were divorced.  The divorce decree ordered the 
applicant’s former spouse that at the time of his retirement to 
select a SBP plan option that identified her as the beneficiary.

The service member never made an election for RCSBP coverage 
upon completion of 20 years of satisfactory service on 31 Oct 
99.  

Special Order AA-0550 dated 17 Jun 10, shows that the service 
member was retired from the Air National Guard (ANG) effective  
1 Nov 10 in the grade of Master Sergeant (MSgt, E-7).  He served 
20 years 8 months and 14 days of active duty for retired pay.

On 2 Dec 11, the applicant’s request was administratively closed 
due to pending litigation (Court Case No.4FA-97-1923CI, Hess v 
Hess).   

On 12 Apr 13, the applicant provided a copy of Court Case 
No.4FA-97-1923CI, Hess v Hess and requested her case be re-
opened.  The court decree ordered the parties to cooperate in 
attempting to get the SBP coverage reinstated with the applicant 
named as the irrevocable beneficiary.

_____________________________________________________________ 

AIR FORCE EVALUATION:

The Legal Advisor believes the Board has the authority to render 
a correction in favor of the applicant who having remarried 
before age 55 and therefore not being eligible for an annuity 
under the SBP may nonetheless receive a records correction in 
her favor.  However, the Legal Advisor recommends the Board deny 
the applicant’s request for failure to carry the burden of proof 
attesting to the marital status of the applicant’s former 
husband, the retired service member.  The Legal Advisor also 
draws the Board’s attention to the requirement for the applicant 
to explain why her failure to file a deemed election within the 
statutory period of one year from the date of her divorce as 
required by 10 USC 1450(f)(3)(c) qualifies as an error or 
injustice.  It is the opinion of the Legal Advisor that a 
decision in favor of the applicant would create an immediate 
valid property interest.  If the retiree is not currently 
married, then such action by the Board would comply with the 
guidance from the Office of General Counsel on competing 
interests.  However, before the Board can grant the request, the 
applicant, who has the burden of proof, would have to verify the 
absence of a competing interest by providing an affidavit that 
the retiree has not remarried or other compelling evidence of 
the retiree’s marital status.  In the absence of such evidence, 
the Legal Advisor recommends the Board deny the application.  

The Legal Advisor’s complete evaluation is at Exhibit C. 

_____________________________________________________________ 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Her request is based on the original divorce document dated 
1 Feb 99, which ordered her former spouse to designate her as 
the SBP beneficiary for her portion of the military pension.  
Furthermore, the court decree dated 28 Mar 13, named her as the 
irrevocable deemed beneficiary of the SBP.  The parties were to 
cooperate in attempting to get the SBP coverage reinstated with 
her named as the irrevocable beneficiary.  Her former spouse has 
been asked to mail a signed affidavit to SAF/MRB confirming his 
marital status as single.  The Legal Advisor’s opinion tries to 
move the burden of proof to her despite the court orders stating 
otherwise.  Her former spouse is responsible for explaining why 
he failed to comply with court orders.

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

________________________________________________________________ 

FORMER SPOUSE AFFIDAVIT:

In an affidavit dated 7 Jun 14, the applicant’s former spouse 
under oath states he remarried after his divorce from the 
applicant but is currently not married.

The affidavit is at Exhibit F.  

________________________________________________________________ 

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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  The 
applicant is requesting that she be designated as the 
beneficiary for her former spouse’s RCSBP.  We note the MRB 
Legal Advisor stated that before the Board could grant the 
request, the applicant had to verify the absence of a competing 
interest by providing an affidavit that the former spouse had 
not remarried or other compelling evidence of the service 
member’s marital status.  In response to the Legal Advisor’s 
evaluation, the service member provided an affidavit dated 7 Jun 
14, stating that he is no longer married.  Accordingly, we find 
the evidence presented sufficient to correct the record to show 
that on 31 Oct 99, (the date he completed 20 years of 
satisfactory service) the service member elected former spouse 
coverage under the RCSBP based on full retired pay, naming the 
APPLICANT as the former spouse beneficiary.  Therefore, we 
recommend the record be corrected as indicated below.

________________________________________________________________ 

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the SERVICE MEMBER be corrected to show that 
on 31 Oct 99, he elected former spouse coverage under the 
Reserve Component Survivor Benefit Plan (RCSBP) based on full 
retired pay, naming the APPLICANT as the former spouse 
beneficiary.  

_________________________________________________________________

The following members of the Board considered Docket Number BC-
2011-00202 in Executive Session on 27 Jun and 7 Jul 14, under 
the provisions of AFI 36-2603:     

 , Vice Chair
 , Member
 , Member

All members voted to correct the records as recommended.  The 
following documentary evidence was considered: 

     Exhibit A.  DD Form 149, dated 7 Jan 11, w/atchs.
     Exhibit B.  Letter, Applicant, dated 12 Apr 13, w/atchs.
     Exhibit C.  Letter, Legal Advisor, dated 10 Apr 14.  
     Exhibit D.  Letter, SAF/MRBR, dated 5 May 14.   
     Exhibit E.  Letter, Applicant, dated 20 May 14, w/atchs.  
     Exhibit F.  Affidavit, Former Spouse, dated 7 Jun 14. 
   



                                    
                                   Vice Chair