RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00795
(MEMBER) COUNSEL: NONE
(APPLICANT)
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. Her former spouses records be corrected to reflect he was
eligible for retirement and;
2. He made a timely election for spouse coverage under the
Reserve Component Survivor Benefit Plan (RCSBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
She believes she is entitled to receive her former spouses
retired pay. He filled out the necessary forms electing her as
his beneficiary.
In support of her request, the applicant provides an expanded
statement and copies of an ARPC Form 123, Reserve Component
Survivor Benefit Plan Election Certificate, and a letter from the
Defense Finance and Accounting Service (DFAS).
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 letter prepared by the appropriate office of the Air
Force, which is attached at Exhibit B.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ ARPC/DPTT recommends denial. The servicemember accepted an
early retirement on 13 Aug 96. He was notified on 23 Oct 96 of
his eligibility to participate in the RCSBP. He elected Option C
(immediate annuity) for spouse and child coverage based on full
retired pay on 12 Jan 97. The servicemember passed away on
18 Jul 04 and the applicant began receiving the RCSBP annuity in
July 2004. The applicant sent DFAS her Certificate of
Eligibility along with a copy of her marriage certificate
indicating she had remarried. She was 46 years old at the time
of her remarriage. Title 10, United States Code (U.S.C.),
Section 1450(b)(2) states the annuity terminates if a spouse
remarries before age 55. In addition, Title 10, U.S.C., Section
1450(b)(3) states if the surviving spouse remarries before
reaching age 55 and that marriage is terminated by death,
annulment, or divorce, payment of the annuity shall be resumed
effective as of the first day of the month in which the marriage
is so terminated.
The complete HQ ARPC/DPTT evaluation, with attachments, is at
Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The forms the servicemember completed electing her as his
beneficiary did not indicate anything regarding the implications
of remarriage on her benefits. This form is a legal document
and, absent this information, her annuity should not be
terminated based on these provisions.
The applicants complete response is at Exhibit C.
_________________________________________________________________
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 an error or an injustice. We took
notice of the applicants complete submission, to include the
rebuttal response, in judging the merits of the case; however, we
agree with the opinion and the recommendation of the Air Force
office of primary responsibility and adopt its rationale as the
basis for our conclusion that the applicant has not been the
victim of an error or injustice. While it is regrettable the
applicant may not have been aware of the impact of remarrying
before turning age 55, unfortunately due to the provision of law
on this issue, the relief requested is outside the Boards
authority. Therefore, we must recommend that the requested
relief be denied.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of a 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-2011-00795 in Executive Session on 27 Oct 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Mar 11, w/atchs.
Exhibit B. Letter, ARPC/DPTT, dated 29 Jun 11.
Exhibit C. Letter, SAF/MRBR, dated 15 Jul 11.
Exhibit D. Letter, Applicant, dated 19 Jul 11.
Panel Chair
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