RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:
		DOCKET NUMBER:  BC-2013-05023
		COUNSEL:  NONE
		HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

Her former spouse’s record be changed to show he elected spouse 
coverage under the Reserve Component Survivor Benefit Plan 
(RCSBP).


APPLICANT CONTENDS THAT:

Her former spouse was ordered by the court to provide her with 
survivor benefit plan coverage under the SBP.  She was not given 
the opportunity to review and sign the ARPC Form 123, Reserve 
Component Survivor Benefit Plan Election Certificate.

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


STATEMENT OF FACTS:

On 12 December 1998, the former service member submitted his 
ARPC Form 123, RCSBP Certificate, electing Option A, “Decline To 
Make an Election Until Age 60.”  During this time, the former 
service member was married with dependent children.

The service member and the applicant were divorced in November 
2011.

On 12 and 13 January 2015, the AFBCMR marital status affidavits 
were forwarded to the former military member and the applicant 
(Exhibit E). 

The applicant and the former service member responded with a 
signed and notarized affidavit, which indicates that neither 
party has remarried (Exhibit F).

On 28 January 2015, the applicant and former service member were 
provided an advisory prepared by SAF/GCM on similar cases 
considered by the Board.  This advisory was forwarded to the 
applicant and former service member for review and comment 
within 30 days (Exhibit G).  As of this date, this office has 
received no response.


AIR FORCE EVALUATION:

ARPC/DPTT recommends approval.  DPTT states they should have 
given the former service member an opportunity to correct the 
ARPC Form 123 he submitted at the time he made his election.  If 
the Board agrees with the recommendation, the service member’s 
records should be corrected to show he made an RCSBP election of 
Option C, “Immediate Annuity for Spouse Only” effective 
12 December 1998.  Also, his record should be corrected to show 
he elected “Immediate Annuity for Former Spouse” effective 
23 November 2011, the date of divorce.

ARPC received and accepted this form as a valid RCSBP election 
on 16 December 1998.  The service member’s form should have been 
returned to request his spouse’s concurrence as dictated by law.  
In accordance with U.S.C. Title 10 Subsection 1448 (a) (3) (A) 
and Section IX on the form, “A married person who is eligible to 
provide standard annuity may not without the concurrence of the 
person’s spouse elect not to participate in the Plan.”  ARPC 
failed to notify the service member to make corrections and 
updated his election in error.  At this time, the service member 
would have been automatically enrolled in Option A – “Decline To 
Make an Election Until Age 60.”

The court awarded former spouse coverage under the RCSBP.  On 
22 November 2011, the service member contacted ARPC on the 
change in his marital status and was informed that he did not 
make a RCSBP election.  He was also advised about RCSBP law 
constraints and his eligibility to participate in the Plan at 
age 60.  Prescribed by Title 10 U.S.C. Subsection 1448 (a) (2), 
“A person who is eligible to participate in the Plan and who is 
married or has a dependent child when he becomes entitled to 
retired pay, unless he elects (with his spouse’s concurrence) 
not to participate in the plan before the first day for which he 
is eligible for that pay.”  The service member did not elect to 
participate in the RCSBP program and would have only been 
offered the opportunity to participate on his 60th birthday, 
19 February 2016.

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


APPLICANT AND SERVICE MEMBER’S REVIEW OF AIR FORCE EVALUATION:

The applicant states that she concurs with the advisory opinion 
from ARPC/DPTT.  Apparently, her former spouse submitted an ARPC 
Form 123, electing to defer coverage until age 60.  He never 
discussed this form or his election of coverage with her.  She 
submitted every form necessary to receive benefits within the 
window of time specified.

The applicant’s complete response, with attachments, is at 
Exhibit D.

The former service member requests his former spouse’s 
application be denied.  Had he been notified at the time of the 
election, or any point thereafter, that the election was 
invalid, he would have taken the appropriate steps to validate.  
The allegation made by his former spouse that the court ordered 
him to provide her coverage is not true.  He further states that 
the window of time that his former spouse had to file for the 
deemed election right to his military retirement SBP expired on 
8 June 2012.

The service member’s complete response, with attachments, is at 
Exhibit E.


THE BOARD CONCLUDES THAT:

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

2.  The application is timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We note 
that the OPR recommends approval, stating the service member’s 
RCSBP election form should have been returned to request his 
spouse’s concurrence as dictated by law and the former service 
member should have given an opportunity to correct the election.  
However, we note the former service member takes issue with the 
OPRs recommendation, and requests the application be denied 
noting had he been notified at the time of the election, or any 
point thereafter, that the election was invalid, he would have 
taken the appropriate steps to validate.  In cases involving 
competing interests, this Board has been advised not to consider 
such cases unless a court of competent jurisdiction has ruled in 
the case or remands the case to the Board to make a 
determination.  Therefore, since there has been no showing of 
extraordinary circumstances, we are precluded from granting the 
former spouse the SBP benefit.  Therefore, absent persuasive 
evidence to the contrary, we find no compelling basis to 
recommend granting the relief sought in this application.






THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of an 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-2013-05023 in Executive Session on 30 October 2014 and 
18 March 2015, under the provisions of AFI 36-2603:


The following documentary was considered:

  Exhibit A.  DD Form 149, dated 11 October 2013, w/atchs.
  Exhibit B.  Letter, ARPC/DPTT, dated 19 December 2013,
              w/atchs.
  Exhibit C.  Letters, SAF/MRBR, dated 13 June 2014.
  Exhibit D.  Letters, Service Member, dated 1 July 2014,
              w/atchs and Applicant, dated 11 August 2014,
              w/atchs.
  Exhibit E.  Letters, AFBCMR, dated 12 and 13 January 2015.
  Exhibit F.  Affidavits, Service Member and Applicant.
  Exhibit G.  Letters, AFBCMR, dated 28 January 2015.