IN THE CASE OF: BOARD DATE: 18 December 2019 DOCKET NUMBER: AR20170011431 APPLICANT REQUESTS: in effect, that her husband, a former service member (FSM) records be corrected to show the FSM made a timely election to change his RCSBP and SBP elections to show “former spouse” instead of “spouse”. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * New York State - Certificate of Marriage Registration * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * Memorandum, Subject: SBP Election Certificate * State of Minnesota - Notice of Entry of Judgement and Decree * State of Minnesota - Certificate of Death * DD Form 2656-7 (Verification for Survivor Annuity) * Direct Deposit Sign-up Form FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant, the FSM’s spouse states she was married to the military member when he received his 20-Year Letter on 3 November 2005. She claims he failed to complete the DD Form 2656-5, which caused the SBP election to default to option C (immediate annuity for spouse only). When the divorce was finalized, the SBP change form was not submitted within 12 months and there was not a DD Form 2656-5 on file reflecting the change. However, her divorce decree states she was set to receive a portion of his military retirement. 3. The applicant provides the above referenced documents to include: a. A Certificate of Marriage registration, dated 7 July 1987 from the State of, which states the FSM and applicant were lawfully married on. b. On 3 November 1995, Department of Military Affairs, Army National Guard (MNARNG), issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This letter stated: you are entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse and other eligible beneficiaries. By law, you have only 90 calendar days from the date you receive this letter to submit your SBP Election Certificate (DD Form 1883). If you do not submit your election within 90 calendar days, you will be automatically enrolled in the RCSBP under option C, spouse and children coverage based on full retired pay. c. Memorandum, Subject: SBP Election Certificate (DD Form 2656-5), dated 27 June 2005 from the Deputy J1, Army Personnel, which states records indicated that the SBP Election Certificate was not on file at their office. The election must be accomplished within 90 days of receipt of notification of twenty years of service. If you were married at the time your letter ws issues you will have the premium for ‘Full Immediate Annuity Coverage” deducted from your retired pay when you begin drawing it at age 60. d. Divorce decree, dated from the state of, which states the applicant was lawfully married to the FSM on and separated in August 2008. e. A death certificate dated 5 June, from the state of, which certified the FSM died on 30 May. His death certificate lists his marital status as divorced (and not remarried). The FSM was years of age when he died. f. DD Form 2656-7, dated and signed by the applicant, dated 7 June, which states in: * Block 2a (claimant’s name): P_G_ * Block 2g (type of benefit claimed): SBP * Block 2h (relationship): former spouse * Block 3b (children under age 23): L_G_, M_N_G, M_R_G_ * Block 5a (date of divorce): 13 July 2009 * Block 6 (Dependency and Indemnity Compensation): No 4. A review of the applicant’s service record shows: a. He enlisted in the MNARNG on 15 October 1990. b. On 3 November 2005, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter states he had 90 days to make an Reserve Component Survivor Benefit Plan (RCSBP) election, otherwise, a failure to meet this requirement would result in the retention of full coverage for his souse and children. c. On 27 June 2006, the FSM was informed by the Department of Military Affairs, that since no SBP election had been made within the allotted time, he was issued Full Immediate Annuity SBP Coverage for spouse and child, and that deductions would SBP coverage for deducted from his retire pay when he begins drawing pay at age 60. b. According to his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 5 July 2008 shows he was honorably released from active duty upon completion of required active service. He completed 12 years, 3 months, and 18 days of net active service this period, with 2 years, 10 months, and 2 days of prior active service and with 8 years, 7 months, and 1 day of prior inactive service. c. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was separated from the ARNG on 31 August 2008. He completed 22 years, 10 months, and 16 days of total service for retired pay. d. Orders Number, dated 17 September 2008, shows he was transferred to the USAR Control Group on 31 August 2008. e. The applicant’s divorcee decree, dated 13 July Rows, in pertinent part, “The Petitioner shall be entitled to receive surviving spouse benefits, including a Joint and survivor annuity payment benefit under this Plan.” f. There is no documentation in the FSM’s record to show he requested to change his RCSBP election from “spouse” to “former spouse”, nor does it appear that the applicant made a request to the Defense Finance and Accounting Service for a valid “former spouse” SBP election within one year of their divorce. g. The applicant provides the FSM’s death certificate, which shows his death of death on 30 May 2011, at age 47. This document also reflects the statement, “Marital Status: Divorced and Not Remarried.” e. The applicant completed an annuity package which included: A Form W-4P (Withholding Certificate for Pension or Annuity Payments), Direct Deposit Sign-Up Form, Child Annuitant’s School Certifications (3), and a Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces. 5. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. Based upon the preponderance of the evidence, the Board agreed the court-order should have been followed, and the FSM was required to elect former spouse SBP coverage within a year of their divorce. The Board agreed the record should be corrected to show the election was made and approved in a timely manner to be in accordance with public law. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing: a. The FSM made a timely written request to DFAS showing he changed his RCSBP election from “spouse” to “former spouse” within one year of his divorce on 13 July, pursuant to the divorce decree. b. The applicant submitted a timely written request to DFAS for an SBP annuity, one day after the FSM’s death on 30 May. c. The applicant is entitled to any and all SBP annuity back payments, retroactive to the date of the FSM’s death. 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. REFERENCES: 1. Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Record (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP). It essentially states, in pertinent part, that eligible participants include persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. A standard annuity participant is a person who is entitled to retired pay 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. A person who is a participant in the Plan and is providing coverage for a spouse or spouse and child and who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan, may elect to provide an annuity to that former spouse. 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. A person who elects to provide an annuity to a former spouse shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth whether the election is being made pursuant to the requirements of a court order or whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as part of, or incident to, a proceeding of divorce, dissolution, or annulment, and (if so) whether such voluntary written agreement has been incorporated in or ratified or approved by, a court order. 2. Title 10, USC, section 1450, governs beneficiaries and payment of SBP annuities. It essentially states, in pertinent part, that if a Plan participant is required pursuant to a court order to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives a written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made. The request shall include either a copy of a court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person, or a statement from the clerk of the court that such agreement has been filed with the court in accordance with applicable State law. An election may not be deemed to have been made in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved. Also, it states, that effective as of first day after the death of a participant in the Plan, a monthly annuity under section 1451 of this Title shall be paid to the person’s beneficiaries under the Plan as follows: (1) the person’s eligible surviving spouse or eligible former spouse, (2) the surviving dependent children in equal shares, if the eligible surviving spouse or eligible former spouse is dead, dies, or otherwise becomes ineligible, (3) dependent children in the event of an election of child only coverage with spousal concurrence, (4) natural person with an insurable interest. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011431 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1