ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20160014490 APPLICANT REQUESTS: in effect, correction of her deceased ex-husband's, a former service member's (FSM's), records to show he elected former-spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP), naming her as the beneficiary, and payment of the Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Statement * Letter, U.S. Army Human Resources Command (HRC), dated 9 May 2016 * FSM's Death Certificate * Separation Agreement * Judgment of Absolute Divorce FACTS: 1. The applicant states an HRC official denied her request to receive an SBP annuity because it was not awarded or stipulated in her divorce decree. The FSM and she did not know about the Reserve Component Survivor Benefit Plan (RCSBP). If they had known the proper legal language to use to allow for receipt of the SBP, she is positive it would have been included in the separation agreement. It was the FSM's intent that she receive an SBP annuity as clearly indicated in section 12 of the separation agreement. She is certain that neither the court, the attorneys, her late ex-husband, nor she knew about RCSBP and she now asks to be granted relief per her divorce decree. 2. The FSM was born on 18 December 1959. 3. Having prior enlisted service in the Army National Guard (ARNG), the FSM was appointed as a Reserve commissioned officer in the ARNG on 11 June 1981. 4. The FSM and the applicant (Bernadette) were married on 11 September 1982 and they had one son who was born on 4 June 1990. 5. The applicant provided a copy of her and the FSM's separation agreement, dated 2 March 1999, signed by both her and the FSM. Paragraph 12 provides for the distribution of the FSM's "Army Reserve Retirement." It states: Husband [FSM] shall transfer and assign to Wife [Applicant] a share of his U.S. Army Reserve retirement which he is presently earning. Wife's [Applicant's] share shall be one-half of the credits Husband [FSM] has earned during the parties' marriage through the date of the parties' separation date of September 1, 1995. Should Husband [FSM] continue to participate and accumulate requisite credits, he will be entitled to receive payments under this plan upon his sixtieth birthday. Wife [Applicant] shall receive her share if, and when Husband [FSM] receives any payments, whether by lump sum or otherwise. The share of Wife [Applicant] will be one-half of a fraction wherein the numerator represents the total number of credits earned by Husband [FSM] during the marriage through September 1, 1995 and the denominator represents the total number of credits earned by Husband [FSM] during his participation in the plan. 6. On 16 June 1999, the applicant and the FSM divorced. 7. On 31 May 2007, Joint Forces Headquarters, Maryland, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The memorandum notified him he completed the required years of service and would be eligible for retired pay at age 60, upon application. The memorandum further informed him: Public Law 95-397, 30 September 1978, created the Reserve Components Survivor Benefit Plan (RCSBP), in which you are entitled to participate. RCSBP is your sole means of protecting your retired pay entitlement. NOTE: Public Law 106-398, 30 October 2000, requires that upon receipt of this Letter, a qualified Reserved Component member, who is married, will automatically be enrolled in the RCSBP under option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS different coverage is selected within 90 days of receipt of this letter. Notarized spousal concurrence is required in order to decline full and immediate coverage for annuitants. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN). If you elect to remain covered under the automatic provision of the Law you must provide this Command written correspondence (the enclosed DD Form 2656-5 (formally [formerly] DD Form 1883) is required) stating who you have designated as annuitant(s). The cost for this participation will commence upon your receipt of retired pay at age 60. Detailed information concerning RCSBP program and cost is enclosed. You must contact this Command for answers to specific individual questions. 8. On the date of issuance of the 20-year letter, the FSM was not married to the applicant and his son by the applicant was 26 years old. There is no evidence showing the FSM made an RCSBP election within 90 days of issuance of the 20-year letter. 9. On 31 July 2011, the FSM was separated from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve). 10. The FSM's records contain a memorandum for record from Headquarters, Maryland ARNG, dated 1 November 2012, documenting non-receipt of the FSM's DD Form 2656-5 within 90 days after receipt of his 20-year letter. The memorandum specifically noted: Soldiers issued their 20 Year NOE [notification of eligibility] after 31 December 2000 who did not make an election within 90 days using DD Form 2656-5, Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, are automatically enrolled in the RC-SBP under Option C for spouse and or children. Soldiers without a spouse and or children will have Option A automatically elected for them. 11. The FSM died on 15 January 2016. He was 56 years of age at the time. His death certificate shows him as divorced. 12. The FSM did not receive Reserve retired pay. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The former spouse is ineligible for SBP of the deceased FSM for several reasons. 1. The divorce decree does not award the former spouse SBP or any other type of annuity; the divorce decree only considers the FSM’s retired pay. The FSM was deceased before he received retired pay. 2. Once the FSM remarried, his new spouse would be the beneficiary for any SBP election. The FSM remarried in 2000, thus the ex-spouse was not entitled to SBP. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve 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 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 4. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person to elect to provide an annuity to a former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce. The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce. 5. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. ABCMR Record of Proceedings (cont) AR20160014490 2 1