IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20140017462 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the former spouse of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show her children are eligible for a Reserve Components Survivor Benefits Plan (RCSBP) annuity. 2. The applicant states the FSM's children should be able to receive a RCSBP annuity despite the applicant's remarriage because the FSM never added his new spouse within one year of his marriage. 3. The applicant provides: * a self-authored statement * National Guard Bureau Form 23A (Army National Guard Current Annual Statement) * Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) CONSIDERATION OF EVIDENCE: 1. The FSM was born on 9 November 1967, and he married the applicant on 8 May 1991. The FSM has two children, S___ A. H___ born 9 September 1995 and S____ E. H___ born 16 May 2000. 2. Having prior enlisted service in the Army National Guard (ARNG), the FSM was appointed a Reserve commissioned officer of the Army on 1 August 1998. He attained the rank/grade of captain/O-3 on 5 November 2003. 3. On 15 March 2005, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter advised the FSM that he was eligible to participate in the RCSBP. The letter also advised him of the following: a. Public Law 106-398, 30 October 2000, required that upon receipt of that letter, a qualified RC member, who was married, would automatically be enrolled in the RCSBP under option C, Spouse and Child(ren) coverage based on Full Retired pay, unless different coverage was selected within 90 days of receipt of that letter. Notarized spousal concurrence was required in order to decline full and immediate coverage for annuitants. b. Failure to meet that requirements would result in the retention of full coverage for their Spouse and Children. If he elected to remain covered under the automatic provision of Law he must provide that command written correspondence (the enclosed DD Form 2656-5 (RCSBP Election Certificate) (formerly DD Form 1883 (SBP Election Certificate) stating who he had designated as annuitant(s). c. The cost for that participation would commence upon receipt of retired pay at age 60. 4. The instructions for DD Form 2656-5 state, "If you did not submit this form as required, your election, if any, will be determined by law." 5. There is no evidence the FSM completed a DD Form 2656-5 within 90 days of receiving his 20-Year letter. 6. The applicant states she and the FSM divorced on 6 June 2007. 7. On 30 May 2009, the FSM married the former C______E A. J____S. 8. On 1 November 2008, the FSM was honorably transferred to the Retired Reserve. 9. On 2 March 2014, the FSM died. 10. The Defense Finance and Accounting Service states the FSM's RCSBP annuity is being paid to his widow. 11. The applicant provides a self-authored statement in which she states, in effect: a. North Carolina ARNG retirement representatives informed her that they were unable to locate a DD Form 2656-5 designating any annuitant(s). According to Public Law 106-398, if the FSM was married at the time he received his 20-Year Letter, Option C – Spouse and Child(ren) would be the automatic election. At the time he received the letter on 15 March 2005, the applicant was married to the FSM and they had two children as reflected in Defense Enrollment Eligibility Reporting System (DEERS). As the current spouse, she did not provide notarized spousal concurrence to decline full and immediate coverage for annuitants. Without his completed DD Form 2656-5 nor her notarized declination, the automatic Option C – Spouse and Child(ren) coverage should have been in place. b. The applicant divorced the FSM on 6 June 2007. However, the FSM never removed the applicant as his spouse in his military records. Additionally, he accompanied her to Fort Bragg, NC, for the reissue of a military identification card on 21 December 2007. They discussed many times that the option would ensure his children would receive his retirement in the event of his untimely death. It was his desire his children receive his military retirement because we, as his family during much of his service, supported him for his 23 years in the NCARNG. c. In February 2009, the applicant remarried and in May 2009, the FSM remarried. The FSM did not elect to remove the applicant as his spouse in DEERS and to add his new spouse nor did he add his new spouse within one year of the marriage as noted in the eligibility requirements. She clearly understands that her remarriage makes her ineligible for the FSM's retirement. In fact, under Option C, the spouse is the primary beneficiary and the children are contingent beneficiaries in the event the spouse becomes ineligible (in this case through remarriage). She claims this would make her ineligible but not the children. The FSM and the applicant were both under the impression that by failing to remove her as his spouse would protect the interest of his children. In her research, she could not locate any statues which penalize a retiree's children for an adult's decision to remarry. d. Evidence shows the FSM had ample time to remove the applicant as his spouse in his official military records; however, he did not. It was their belief that by maintaining his current record in DEERS, it would protect the interest of his children. To reinforce his thought process, he did not remove the applicant as his beneficiary for his NC Teachers Retirement because he knew that his children would benefit from the receipt of these funds as well. e. Her discussions with Army representatives have been very evasive and even hostile as she pursued support for the FSM's children. As a family, they supported him for 17 of his 23 years of service to the NCARNG and to receive such treatment and blatant disregard for his children is incredibly disheartening. Even more discouraging, is to award his military retirement to his current spouse who did not marry him until after his service was completed. She cannot think of a greater injustice to a child of a veteran than the message sent by this decision. f. Their children are deserving of his RCSBP and she asks the Board to recognize that if he wished the funds to support his current spouse, he would have taken the many opportunities to change his records to recognize her as his spouse. The message is clear by his actions. There was simply confusion that not doing anything would allow a default to her. She questions how the Army can pick and choose which rules and guidelines to follow regarding RCSBP? The FSM did not add the current spouse within one year which is in the guidelines. Is there no regard for the veteran's actions not to recognize the eligibility of his current spouse? This is not a fight for benefits for a former spouse but his children who are contingent beneficiaries. g. At the death of the FSM, his son lived with him and his minor daughter lived with the applicant. The FSM left no will and there is no settlement to his estate. His income from work ceased immediately and it appears there was no life insurance to support the children with the exception of a policy from the NCARNG Association which appears to have been used for his burial. She humbly requests the decision to award the RCSBP annuity to the FSM's current spouse, whom the FSM failed to designate as such in his records, be reconsidered and awarded to his two biological children. 12. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday * Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60 13. Once a member elects either Option B or Option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. DISCUSSION AND CONCLUSIONS: 1. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt. 2. When the FSM received his 20-year letter, he failed to respond within 90 days; therefore, he was automatically enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired pay. Option C means he elected to provide an annuity immediately should he die before his 60th birthday, or on the day after his death, should he die on or after his 60th birthday. 3. Unfortunately, SBP and RCSBP elections are by category, not by name. Despite the FSM's default election for "spouse and child(ren)" coverage, in the event of death, his widow is the primary beneficiary, if otherwise eligible. There was no need for the FSM to add his new spouse within 1 year because he already had spouse coverage. His spouse coverage was simply suspended at his divorce from the applicant. His new spouse obtained an interest in RCSBP at the 1-year anniversary and that interest vested upon the FSM's death. 4. In view of the foregoing, by law, there is no basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ x _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140015060 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140015060 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1