RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-01612
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
She be designated as beneficiary for former spouse coverage under the decedents Reserve Component Survivor Benefit Plan (RCSBP).
APPLICANT CONTENDS THAT:
She and the decedent decided to go their separate ways after sharing 19 years together. She sincerely apologizes for not making a valid former spouse election during the first year following their divorce. It was very hard for her to accept their separation when the divorce was final. It took her more than a year to recuperate from such an emotional distress. Also, the decedent and she agreed that he would handle all the required paperwork concerning the SBP. About three years ago, the decedent and she began to dialogue again when he discovered he had brain cancer. However, she did not feel it was a good time to discuss the SBP and therefore could not confirm if he had submitted anything on her behalf. She experienced a second lose upon his demised. It was not until she contacted the Defense Finance and Accounting Services (DFAS) that she discovered she was not entitled to SBP.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
According the decedents military personnel records, on 18 September 2007, he was transferred to the Retired Reserve in the grade of major (O-4) to await retired pay at age 60.
According to a Constituted Pension Order issued in the Circuit Court for Anne Arundel County, Maryland, submitted by the applicant, she and the decedent were married on 10 April 1982 and the parties divorced on 19 January 2002. Furthermore, it was determined she qualified under 10 United States Code (U.S.C.) 1447-1455, the Survivor Benefit Plan, and was the decedents elected beneficiary.
According to a Certificate of Death issued by the state of Maryland, submitted by the applicant, the decedent died on 19 November 2013.
A copy of the marital status affidavits were forwarded to the applicant on 29 April 2014, to verify if either she or the decedent had remarried since their divorce (Exhibit C).
The applicant responded with a signed and notarized affidavit, dated 12 May 2014, which indicates that she is not currently married and the decedent was married.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit E.
AIR FORCE EVALUATION:
ARPC/DPTT recommends denial. The applicant was awarded full survivor benefit annuity under RCSBP by court order. However, the applicant did not notify ARPC of her RCSBP election within one year as prescribed by Title 10 United States Code, Subsection 1448(b)(3)(A), Manner and time of election 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. Since the applicant did not notify ARPC of the court ordered election within the required timeframe, she is thereby ineligible to receive the RCSBP annuity.
A complete copy of the ARPC/DPTT evaluation is at Exhibit E.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
She argued when she received the divorce decree by mail, she truly believed there was nothing more needed to be done and put the documents away. She reiterated her apologizes for not knowing the proper regulations and not being educated on the process of RCSBP election. It was her belief that the court pension order had covered it all. By neglecting to follow through with the necessary procedures to receive RCSBP benefits, was not purposely done and she request leniency.
The applicants complete response, with attachments, is at Exhibit G.
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 an error or injustice. We took notice of the applicants complete submission in judging the merits of the case, to include her rebuttal response; however, based on the legal guidance the Board has been given, we are not able to grant relief in cases of competing SBP beneficiaries. While we do not take issue with the applicants assertion she was awarded coverage under RSBP, she failed to convert the coverage within the required timeframe. Consequently, the decedents current spouse gained entitlement to the benefit as an operation of law. The applicants only recourse is to return to a court of law to have the issue decided or if the current spouse provides a notarized consent relinquishing the RSBP benefit. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested 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-2014-01612 in Executive Session on 6 May 2015 under the provisions of AFI 36-2603:
Vice Chair
Member
Member
The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01612 was considered:
Exhibit A. DD Form 149, dated 15 April 2014, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, SAF/MRBR, dated 29 April 2014.
Exhibit D. Applicant, Marital Status Affidavit, dated 12
May 2014.
Exhibit E. Memorandum, ARPC/DPTT, undated, w/atchs.
Exhibit F. Letter, SAF/MRBR, dated 15 September 2014.
Exhibit G. Applicant, dated 25 September 2014, w/atchs.
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