RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-00669

		  	COUNSEL:  
		
	 	 	HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

The record be corrected to reflect a timely election for former 
spouse coverage under the Survivor Benefit Plan (SBP).

________________________________________________________________

APPLICANT CONTENDS THAT:

Through counsel, she states she and her former husband were 
married on 29 March 1972 and divorced on 15 March 1999 at which 
time they executed a Qualified Domestic Relations Order (QDRO).

Her former spouse became eligible to receive his military 
retirement pay on 23 September 2008 when he turned 60 years old.  
He received 100 percent of his retirement pay, despite the QDRO 
which required that she receive a portion of his military 
retirement pay.  Once she became aware that he was receiving 
retired pay, she sent what she thought was the required 
information to the Defense Finance and Accounting Service 
(DFAS).  In the spring of 2009, she was notified by DFAS that 
the language used in the QDRO did not satisfy their requirements 
and a new QDRO would need to be drafted. 

In early 2011, she began working with an attorney to draft a new 
military pension order (MPO).  In April 2011, the draft was 
forwarded to her former spouse (the member) for review and 
signature.  However, no response was received.  As such, she was 
forced to file a motion for contempt in the Superior Court of 
Connecticut.  

In May 2011, the Court analyzed the QDRO from 1999 and ordered 
the parties sign a new MPO.  The Court determined the parties 
intended that she be named as former spouse beneficiary and 
ordered the parties execute the necessary paperwork.  The Court 
based this decision on the language from the QDRO stating “The 
rights of the Alternate Payee or her beneficiary to receive 
benefits from the Plan pursuant to Section III shall not be 
affected by the death of the Participant.”  

As instructed a DD Form 2656-1, Survivor Benefit Plan (SBP) 
Election Statement for Former Spouse Coverage, was executed.  On 
17 May 2011, the DD Form 2656-1, along with a certified copy of 
the MPO, was sent to DFAS.  This order should govern the SBP 
timeline, not the QDRO from 1999 which was deemed invalid by 
DFAS.  

She asks the Board consider the element of fairness when making 
the decision to amend the SBP record.  She was unaware of the 
SBP timelines; unlike her former spouse who had two 
opportunities to name her as the SBP beneficiary.  In any event, 
when she became aware of the timelines, she did her best to 
remedy the situation.  

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant’s former spouse retired from the Air Force Reserve 
on 23 September 2008.

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
primary responsibility, which is attached at Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

The Defense Finance and Accounting Service states there were no 
new facts presented to order a correction in the record.  In 
March 1999, when the member and the applicant divorced, neither 
the divorce decree nor the QDRO required the applicant be named 
as the SBP beneficiary.  

In March 2007, the member elected child only coverage under the 
Reserve Component Survivor Benefit Plan (RCSBP).  He retired in 
September 2008.  In 2011, the applicant submitted an MPO dated 
16 May 2011, which specified she was to be named as the former 
spouse beneficiary.  This request was denied as this was a pre-
retirement divorce and a post retirement order could not be 
honored to deem former souse coverage as the retiree, at that 
time, could not make such an election.

The complete DFAS evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant submits a copy of a Connecticut 
Appellate case in which the Appellate court held the trial court 
had an affirmative duty to issue orders to effectuate the 
existing allocation of marital property and remanded the case to 
the trial court.  During the contempt hearing in May 2011, this 
case was cited by the Court as effectuating the agreement of the 
parties when it ordered that she be named as the former spouse 
beneficiary.  The court stated that it was clear that the 
parties intended to have her listed as the SBP beneficiary. As 
such, she submitted the former spouse election within one year 
of a valid court order.

The applicant’s complete response is at Exhibit F.

________________________________________________________________

BCMR LEGAL ADVISORY:

The BCMR Legal Advisor opines the QDRO was unclear regarding 
RCSBP, providing only that the “rights of the applicant…to 
receive benefits from the Plan…shall not be affected by the 
death of the service member.”  The MPO clarified that the 
applicant, by consenting to the order, shall not waive any 
rights she may have as former spouse under the Survivor Benefit 
Plan and any appeal rights she may have under SBP.  Further, the 
MPO stated to the extent that it is legally permissible, the 
applicant’s 40 percent share of the service members disposable 
military retired pay shall not cease if the service member shall 
predecease the applicant.  On the signature page of the MPO, a 
handwritten paragraph had been added.  The handwritten addendum 
stated that the parties agreed to elect the applicant as former 
spouse beneficiary under SBP at the full base pay amount.  The 
parties agreed to sign any and all paperwork necessary for this 
election.  This handwritten text was then initialed and dated, 
ostensibly by the applicant, and service member.

There are three issues that require comment:  The effect of the 
handwritten changes to the MPO, the legal effect of the MPO and 
the absence of a party with competing interest.  

A previous legal advisory suggested the Board return any 
documents and request an explanation for the alterations.  This 
allows applicants to explain why the document was altered and 
allows them to establish substantial compliance with 
requirements.  Secondly, if the Board determines the MPO is 
sufficient evidence of injustice, the Board can correct the 
record.  DFAS has confirmed pending the outcome of the Board; 
the corrections can be made to the record.  Additionally, there 
are no competing beneficiaries.

The complete BCMR Legal Advisory is at Exhibit G.

________________________________________________________________




APPLICANT'S RESPONSE TO THE BCMR LEGAL ADVISORY:

The applicant’ counsel submits he was the attorney of record for 
the applicant on 16 May 2011 when the MPO was made an order of 
the court, to include the handwritten amendments on the last 
page of the document.  He certifies the document is valid and 
legally operative.  Additionally, he obtained a certified copy 
of the MPO from the court on 13 May 2013, which is attached.  

He further states the handwritten amendment was made prior to 
the parties signing the document and prior to the court signing 
the document.  Upon initialing by the parties, the Court then 
signed the document, making it an order of the Court.

The applicant’s complete response, with attachment, is at 
Exhibit I.

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.	The application was timely filed.

3.	Sufficient relevant evidence has been presented to 
demonstrate the existence of an injustice.  After a thorough 
review of the evidence, we believe corrective action is 
warranted.  The record clearly indicates both parties intended 
for the applicant to receive this benefit by executing the 
Military Pension Order in May 2011.  In view of the foregoing, 
and in an effort to offset any possibility of an injustice,  we 
recommend the member’s records be corrected as indicated below.

4.	The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that on 17 May 
2011, pursuant to a valid court order, he made a timely and 
effective election of former spouse coverage under the Survivor 
Benefit Plan (SBP) based on full retired pay.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2012-00669 in Executive Session on 17 June 2013, under 
the provisions of AFI 36-2603:

					Panel Chair
					Member
					Member

All members voted to correct the record, as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-00669 was considered:

Exhibit A.  DD Form 149, dtd 01 Feb 12, w/atchs.
Exhibit B.  Member’s Master Personnel Records.
Exhibit C.  Letter, DFAS, dtd 7 Sep 12.
Exhibit D.  Letter, SAF/MRBR, dtd 7 Sep 12.
Exhibit E.  Letter, SAF/MRBC, dtd 15 Nov 12.
Exhibit F.  Letter, Applicant’s Response, dtd, 15 Dec 12, w/atch.
Exhibit G.  Letter, SAF/MRB Legal Advisor, dtd 10 May 13, w/atch.
Exhibit H.  Letter, SAF/MRBC, dated 7 Jun 13.
Exhibit I.  Letter, Applicant’s Response, dtd 10 Jun 13, w/atch.




					Panel Chair