RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01718
COUNSEL
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His 2006 election for spouse coverage under the Reserve Component
Survivor Benefit Plan (RCSBP) be honored.
_________________________________________________________________
APPLICANT CONTENDS THAT:
On 9 Oct 01, his former spouse forwarded the Qualified Domestic
Relations Order (QDRO) requesting former spouse election under
RCSBP.
On 14 Feb 05, he married his current spouse. On 1 Feb 06, he
enrolled her in RCSBP. On 23 Aug 10, he was informed by the
Defense Finance and Accounting System (DFAS) that his former
spouse had submitted a deemed election in 2001. On 5 Oct 10,
he requested that DFAS reconsider their decision; however, his
request was denied. He was instructed to file for correction of
his records through the AFBCMR.
On 3 Nov 09, his former spouse forwarded the final Divorce Decree
and Amended Decree to DFAS. DFAS does not have the authority to
extend the one-year time limit to submit the required court
orders for a deemed election. In addition, DFAS does not have
the authority to interpret court orders that are ambiguous or
assume the missing RCSBP election data.
His attorney has provided a legal review and arguments why the
Decree and QDRO are deficient for former spouse SBP.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 24 Apr 01, the applicant was divorced. On 28 Apr 01, a copy
of his divorce decree was received by the Reserve headquarters.
On 15 May 01, he was notified of his eligibility to participate
in the RCSBP.
His original QDRO dated 4 Oct 01, and Amended QDRO dated
9 Oct 01, states in paragraph 5 On or before 16 Oct 01, husband
shall elect former spouse Survivor Benefits Plan coverage for
wife. Husband shall name wife as spouse beneficiary under the
Survivor Benefit Plan.
On 12 Oct 01, he elected Option A defer to make election until
age 60.
On 21 Mar 06, he retired.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPTT recommends denial.
DPTT states the member and/or his former spouse had one year from
the date of the QDRO, dated 9 Oct 01, to make a former spouse
deemed election to the Secretary concerned. Notification is
forwarded to the Secretary by transmission of the relevant
paperwork to DFAS. The Department of Defense (DoD) Financial
Management Regulation (FMR) Vol 7B, Chapter 54, para
540602(C)(2)(A) states The Secretary concerned may deem an
election when a member is ordered by a court or voluntarily
enters in a written agreement, incidental to a proceeding of
divorce, dissolution or annulment to elect former spouse SBP
coverage and the agreement has been incorporated in or ratified
or approved by the court and the members fails or refuses to make
the election.
DPTT notes the former spouses attorney submitted a deemed
election. A copy of the QDRO was received by DFAS on 16 Oct 01.
The normal course of business is for DFAS to forward the
documents to ARPC for action; however, there is no record of
receipt of the documents.
The applicants proper status is Option C, Immediate Annuity for
Former Spouse, based on full retired pay, effective 9 Oct 01, as
dictated by law.
DPTT opines the former spouse did in good faith attempt to deem
her election but that request appears never to have made it to
headquarters for processing.
The complete DPTT evaluation, with attachments, is at Exhibit B
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant strongly disagrees with the DPTT evaluation. He
states the QDRO does not provide the required election data
necessary to complete the SBP enrollment form. He was unclear as
to the type of annuity and base amount of coverage to elect after
reviewing the QDRO with his attorney using the enrollment form
instructions. The type of annuity and the definitions were not
specified. Full Amount under RCSBP was not implied and no Reduced Amount was specified in the Decree or QDRO. The required
election data is on the RCSBP enrollment form and is contained in
the FMR. His attorney attempted to complete the RCSBP enrollment
form with his former spouses attorney. The attempt was refused
and his former spouse and her attorney filed a Petition for
contempt.
On 28 Oct 02, during the Contempt hearing, the Court heard
arguments that the assigned benefits of Fifty percent as of
Apr 2000 was ambiguous for both the division of military
retirement pay and the SBP election for type of annuity and base
amount of coverage.
At the time he received the SBP enrollment he was single and
elected default coverage for Option A defer to age 60. Former
spouses are not automatically covered beneficiaries under the
SBP. A QDRO, naming former spouse coverage, does not afford the
same default election for full coverage as though he were still
married and spousal consent is required for less than full
coverage.
On 7 Mar 08, his former spouses attorney filed a Petition to Require Former Husband to Provide Benefits to Former Wife
Equivalent to Surviving Spouse Benefits Under Husbands Military
Pension. He feels this was done because his former spouse did
not believe she had been awarded the RCSBP entitlement or had
properly deemed it. In addition, the petition was filed well
after his election for current spouse. He feels that his former
spouses attorney failed to secure a SBP deemed election within
the one-year time limit.
The applicants complete statement, with attachments, 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. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. We note the
attorney for the applicants former spouse provided a copy of the
QDRO to DFAS establishing former spouse coverage within the one
year required by law. As such, we find no basis to disturb the
record. The applicants contention regarding his marital status
at the time of his retirement is duly noted; however, we agree
with the opinion and 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. In addition, the corrective action sought by
the applicant is not within the Boards purview and is a matter
that should be decided in Civil Court. 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 6 Mar 13, under the provisions of AFI 36-
2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered in AFBCMR BC-
2012-01718:
Exhibit A. DD Form 149, dated 3 May 12, w/atchs.
Exhibit B. Letter, ARPC/DPTT, dated 14 Jun 12.
Exhibit C. Letter, SAF/MRBR, dated 19 Jun 12.
Exhibit D. Letter, Applicant, dated 17 Jul 12, w/atchs
Panel Chair
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