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AF | BCMR | CY2011 | BC-2011-00793
Original file (BC-2011-00793.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00793
XXXXXXXXXX  	COUNSEL: NONE
XXXXXXXXXX 	HEARING DESIRED: NOT INDICATED

________________________________________________________________

APPLICANT REQUESTS THAT:

Her former husband’s (decedent) records be corrected to show he 
made a timely election for spouse coverage under the Reserve 
Component Survivor Benefit Plan (RCSBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

ARPC advised her that she had all the necessary paperwork; 
however, the decedent never applied for retirement.  In order to 
collect the retirement pay the Supreme Court granted her, she 
was told she had to request in writing to have the decision 
overturned.  Due to a bitter divorce she had not spoken to the 
decedent in several years.  He was trying to acquire additional 
points for retirement; however, he was killed in a car accident.

In support of her request, the applicant provides a personal 
statement, copies of an electronic communiqué, Death 
Certificate, Marriage Certificate, Military Qualifying Court 
Order, Divorce Decree, and various other items associated with 
her request.

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

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained 
in the letters prepared by the appropriate offices of the Air 
Force.  Accordingly, there is no need to recite these facts in 
this Record of Proceedings.

_______________________________________________________________

AIR FORCE EVALUATION:

AFRC/DPTT recommends denial.  DPTT states that the decedent was 
notified of his eligibility to participate in the RCSBP on 
11 Jun 1994 via certified mail.  He was married with eligible 
dependents; however, he did not respond within the 90-day period 
dictated by law and was automatically covered under Option A, 
"Declined to make election until age 60."  This election is 
irrevocable according to Title 10, USC, Subsection 1448.

On 25 Aug 1994, the decedent and the applicant divorced. The 
original Judgment of Divorce or amended Judgment of Divorce did 
not award former spouse coverage under the RCSBP. 

On 14 Nov 2006, a Qualifying Domestic Relation Order (QDRO) was 
entered which granted the applicant entitlement to the SBP.

On 7 Dec 2006, the Defense Finance Accounting Service Cleveland 
Center (DFAS-CL) received by mail the original Judgment of 
Divorce, amended Judgment of Divorce, QDRO and DD Form 2293, 
Application for Former Spouse Payments from Retired Pay.  These 
documents were never forwarded to ARPC for update.  If the 
documents were provided within the required timeframe, DPTT 
would have been unable to update the member's RCSBP election due 
to the member not electing to participate in the Plan when 
eligible.

The decedent passed away from a vehicle accident on 3 Mar 2011. 
The RCSBP annuity was not afforded to his survivors because he 
was not participating in the Plan at the time of his death.  In 
accordance with Title 10, USC, Subsection 1448 (a)(2)(B), the 
member did not elect to participate in the RCSBP program and 
would have only been offered the opportunity to participate on 
his 60th birthday, 3 Mar 2014.

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

ARPC/JA recommends denial.  JA states that ARPC/DPTT's opinion 
succinctly summarizes the relevant facts.  While the applicant’s 
situation calls for the greatest sympathy and compassion, there 
is no error or injustice in the processing of her case which 
would warrant a change to the decedent’s military records.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of her request, the applicant provides two 
letters.  Based on these letters, the Board should see that she 
had no doubt the decedent’s pension would be awarded to her.  As 
far as she is concerned the Air Force had all the necessary 
paper work.  Moreover, at the time of his death he was in 
arrears of over $200,000 in child support and alimony.

Her complete response, with attachments, is at Exhibit E.

_______________________________________________________________

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 took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion the applicant has not been the victim of an error or 
injustice.  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 7 Nov 2013, under the provisions of AFI 
36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered in AFBCMR BC-
2013-00793:

    Exhibit A.  DD Form 149, dated 6 Feb 2013, w/atchs.
    Exhibit B.  Letter, AFRC/DPTT, undated.
    Exhibit C.  Letter, ARPC/JA, dated 24 Apr 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 2013.
    Exhibit E.  Letter, Applicant, dated 15 May 2013.




								 
								Panel Chair 

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