RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	   DOCKET NUMBER: BC-2012-01862
	  		 COUNSEL: NONE
	 		 HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

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

________________________________________________________________

APPLICANT CONTENDS THAT:

Her attorney did not file the DD Form 2656-10, Survivor Benefit 
Plan (SBP)/Reserve Component (RC) SBP Request for Deemed 
Election, within one year of their divorce.  She was not aware 
that there was a form she had to file.

She wants to file the DD Form 2656-10 to obtain the RCSBP deemed 
in their Final Divorce Decree and Domestic Relations Order.

She was married to the service member for 40 years.  At the time 
of his discharge from the Air Force her husband elected to 
invoke the RCSBP, and at the time of the divorce their divorce 
decree ordered this to be upheld.  This was a long marriage. She 
raised their two children and has no other retirement plan.

In support of her request, the applicant provides copies of DD 
Form 2656-10, Final Decree of Divorce, Domestic Relations Order 
[Military Retirement], letters from her attorney, letters from 
the Defense Finance and Accounting Service (DFAS) and numerous 
other documents in support of 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 letter prepared by the appropriate office of the Air 
Force Office of Primary Responsibility (OPR).  Accordingly, 
there is no need to recite these facts in this Record of 
Proceedings.

_______________________________________________________________

AIR FORCE EVALUATION:

HQ ARPC/DPTT recommends denial.  DPTT states the member was 
given an opportunity to make an election under the RCSBP on 
7 Apr 1995 when he was issued a letter notifying him of 
“Eligibility for Retired Pay at age 60.”  On 15 Jul 1995, he 
made an election for Option C, immediate annuity for "spouse and 
children."  The member’s record reflects that he was married and 
had dependent children during this time.

The member and his spouse divorced on 26 Aug 2010.  A final 
divorce decree was issued along with a Qualified Domestic 
Relation Order (QDRO), dated 2 Sep 2010.  Paragraph 8 of the 
QDRO states in part, "It is further ordered that the service 
member shall elect to designate his former spouse as a former 
spouse beneficiary.  To the extent the service member fails or 
otherwise refuses to cooperate in filing the documents required 
to elect to designate a former spouse beneficiary of the SBP, 
the Former Spouse is directed to apply for entitlement to be 
deemed a former spouse by contacting the DFAS Legal Department, 
notifying the court of deemed election pursuant to Title 
10 U.S.C. Section 1447, and sending a certified copy of this 
order to U.S. Military Annuitant within one year of the date 
this QDRO is signed, or former spouse interest therein may, if 
not will, be forever barred."

DFAS would then forward any such document to ARPC for action.  
DPTT has no record of receiving these documents from DFAS or 
from the member or the applicant.  The applicant acknowledged 
that her attorney did not mail a copy of this QDRO to DFAS 
within the designated timeframe dictated by law.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 Jul 2012, copies of the Air Force evaluation were 
forwarded to the applicant and the service member for review and 
comment within 30 days (Exhibit D).

The former member responded and agrees with the advisory opinion 
that the responsibility to submit the required document was not 
met in the time period as established by law and he believes 
there were no extenuating circumstances to prevent this.  He 
also wanted the opportunity to correct his ex-spouse’s statement 
that she "has no other retirement plan."  In addition to serving 
in the military he also worked many years in the civilian sector 
and contributed to the Social Security system.  His ex-spouse 
will be eligible for Social Security benefits based on his 
income when she turns 62 years of age.  According to the QDRO, 
she was awarded 50 percent of the retirement from his civilian 
employment.  In addition, she has been receiving 43.6 percent of 
his retired military pay since he turned 60 on 14 Sep 2011.

The member’s complete response, with attachment, is at Exhibit 
D.

________________________________________________________________

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 injustice.  There is no evidence 
of Air Force error; however, to preclude an injustice, we find 
the evidence provided is sufficient for us to recommend granting 
the requested relief.  After thoroughly reviewing the evidence 
of record, we believe that the member’s records should be 
corrected to reflect that he elected former spouse coverage 
under the RCSBP within the required timeframe.  To deny the 
applicant's request would be denying her an asset awarded to her 
by the court as a result of the divorce.  In view of the 
foregoing, we recommend his records be corrected to the extent 
indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to MEMBER be corrected to show that on 2 Sep 
2010, he elected former spouse and child coverage under the 
RCSBP, based on full retired pay, naming his former spouse as 
the eligible beneficiary. 

________________________________________________________________

The following members of the Board considered this application 
in Executive Session on 19 Dec 2012, under the provisions of AFI 
36-2603:

	  Panel Chair
          Member
	  Member




All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2012-
01862:

    Exhibit A.  DD Form 149, dated 21 Mar 2012, w/atchs.
    Exhibit B.  Letter, ARPC/DPTT, dated 25 Jun 2012, w/atchs.
    Exhibit C.  Letters, SAF/MRBR, dated 27 Jun 2012.
    Exhibit D.  Letter, Member, dated 21 Jul 2012, w/atchs.




								 
		Panel Chair