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AF | BCMR | CY2013 | BC 2012 01718
Original file (BC 2012 01718.txt) Auto-classification: Denied
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 applicant’s 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 spouse’s 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 applicant’s 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 spouse’s 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 spouse’s attorney filed a Petition to Require Former Husband to Provide Benefits to Former Wife 
Equivalent to Surviving Spouse Benefits Under Husband’s 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 
spouse’s attorney failed to secure a SBP deemed election within 
the one-year time limit. 

 

The applicant’s 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 applicant’s 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 applicant’s 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 Board’s 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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