RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	 	DOCKET NUMBER: BC-2013-04553

				COUNSEL:  NONE

				HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

Her late ex-husband’s records be corrected to reflect he made a timely election for spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP), naming the applicant as the beneficiary.  


APPLICANT CONTENDS THAT:

She was unjustly denied former spouse annuity payments under RCSBP.  In accordance with the property settlement of their divorce, the deceased former member was required to name her as the irrevocable beneficiary on his RCSBP.  Both the divorce property settlement and the Qualified Domestic Relation Order (QDRO) state several times that he was supposed to do this.  After the divorce, she asked him several times if this was in order, and he told her it was.  After his death, she was notified by AFPC that he had not named her as beneficiary, but instead, had deferred naming anyone until he turned 60 years of age.  Until his death, she was unaware that he had failed to make the required designation.  

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


STATEMENT OF FACTS:

According to the documentation submitted by the applicant, her husband passed away on 21 Jun 13, and, to date, she has not remarried.  However, the deceased former member was married to someone other than the applicant at the time of his death.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR) which is included at Exhibit C.



AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, indicating there is no evidence of an error or injustice.  On 6 Jun 02, the deceased former member made an RCSBP election for Option C, “Immediate Annuity” for spouse only coverage.  On 28 Jul 04, the deceased former member and the applicant divorced.  A final Divorce Decree, QDRO, and Settlement Agreement were issued.  The court awarded former spouse coverage under the RCSBP to the applicant.  However, neither the deceased member nor the applicant notified AFPC of the change of marital status within the required timeframe.  Title 10, U.S.C, Subsection 1443(3)(A)(iii), requires that any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.  The applicant claimed that the deceased former member assured her several times that he had designated her as a former spouse under RCSBP, but the required action was not accomplished in compliance with law.  On 21 Jun 13, the member passed away.  However, based on not receiving notification of the marital change within one year along with an RCSBP Former Spouse Coverage form, the RCSBP election was automatically updated to reflect Option A “Decline To Make An Election Until Age 60.”

A complete copy of the ARPC/DPTT evaluation, with attachments, is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She reiterates that her deceased ex-husband assured her several times that he had notified AFPC of the change in their marital status and filed all the necessary forms to ensure she received her portion should he pass away.  In addition, she submitted a letter she received from the lawyer her ex-husband hired to handle the military benefits portion of their divorce, which stated “the survivor benefit was set up and is in place.”  Further, she called ARPC to confirm that all was in place, and was told that everything was done.  Her portion of his military retirement was to be the bulk of her retirement income.  She has very little other retirement income because she spent 20 years of her adult life supporting him and his career (Exhibit D).


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission, to include her rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the applicant has presented documentary evidence indicating that her deceased former spouse’s attorney submitted the deemed election required in 2006, even if we were convinced there was an error on the part of the Air Force in not accepting the deemed election described in the letter provided by the applicant, we are not convinced that she has demonstrated that extraordinary circumstances exist in this case that are required for this Board to grant relief in contravention of our previous decisions involving similar cases.  The AFBCMR has consistently refused to grant similar applications where there is a spouse with a legal entitlement to this benefit, unless that spouse relinquishes his/her right to this entitlement in a notarized statement.  However, in this case, the applicant has indicated that there is a potential competing interest for SBP benefits as her deceased former spouse was married at the time of his death.  Therefore, absent the consent of the deceased former member’s widow, we do not find there are extraordinary circumstances here that would cause us to render a determination that would serve to extinguish the legal rights of another party in contravention of our long-standing practice in similar cases.  Therefore, because such an action would deprive the widow of a legal entitlement, granting the application is not appropriate in these circumstances.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of 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-2013-04553 in Executive Session on 22 Nov 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member


The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04553 was considered:

	Exhibit A.  DD Form 149, dated 19 Sep 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/DPTT, dated 3 Dec 13, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 13 Jan 14.
	Exhibit E.  Letter, SAF/MRBC, dated 25 Sep 14.
	Exhibit F.  Letter, Applicant, dated 17 Oct 14, w/atch.