IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20170015468 APPLICANT REQUESTS: * amendment of her DD Form 2656-7 (Verification for Survivor Annuity) to allow for payment of the survivor annuity * retroactive payment of the survivor annuity * amendment of her late husband's records to authorize her issuance of military identification cards and other benefits for which she is eligible 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) * Letter to Army Review Boards Agency, dated 12 May 2017 * Letter to Defense Finance and Accounting Service, dated 12 May 2017 * DD Form 2656-7, dated 12 May 2017 * Letter, Reserve Component Retirements, U.S. Army Human Resources Command (HRC), dated 10 July 2017 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the U.S. Government of the need to retain, access, and review old records for the purpose of settling stale claims which are often difficult to prove or disprove. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act relating to the Survivor Benefit Plan (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. 4. Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved. 5. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. The three elections are: * Option A (Declination of Coverage) – decline to make an election until age 60, or date eligible to request retired pay based on reduced eligibility age * Option B (Deferred Annuity) – elect to provide an annuity beginning on the 60th anniversary of birth should Soldier die before that date, or on the date of death should the Soldier die on or after their 60th birthday * Option C (Immediate Annuity) – elect to provide an immediate annuity beginning on the day after Soldier’s death 6. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), in effect at the time, implemented statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Chapter 3 (RCSBP) provided policies and procedures for implementing Public Law 95-397 as amended. The RCSBP allows Reserve Component Soldiers and former Soldiers who have received notification of their eligibility for retired pay at age 60 to provide a survivor annuity for their dependents should the Soldier or former Soldier die before reaching age 60 and receipt of retired pay. Coverage is not automatic. Those eligible must elect one of the three options offered on the SBP Election Certificate. Should the Soldier elect Option A or fail to return the DD Form 1883 (now known as the DD Form 2656-5) within the prescribed time period, and die before reaching age 60, the survivors will not receive benefits under Public Law 95-397. Failure of the Soldier to initially elect coverage at this time does not preclude eligibility to subsequently elect survivor benefit coverage under the Survivors Benefit Plan with application for retired pay upon reaching age 60. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. 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 surviving former spouse of the deceased FSM, states: * the FSM received his Notice of Eligibility for Retired Pay in March 2004 and made his RCSBP Election in June 2004 * the FSM would have reached age 60 on 12 March 2009 and would have been eligible for retired pay at that time * the FSM passed away on 8 November 2008 * she was never informed about a survivor benefit based on FSM's military pension * for that reason she never made an application for the annuity 3. The State of Circuit Court for the County Judgement of Divorce, dated 30 October 2000, shows the FSM and the applicant divorced on that date. The divorce decree states: "It is further ordered and adjudged that any interest which either of the parties hereto may have in any policies or contract of life insurance, endowment or annuity, upon the life of the other party shall be and hereby is extinguished and the parties hereto shall, in the future, hold all such insurance free and clear of any right or interest which the other may have had heretofore, or may now have therein by virtue of being the beneficiary or otherwise." 4. The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 5 March 2004. 5. The FSM's DD Form 2656 (RCSBP Election Certificate), dated 1 June 2004, shows in: a. Section III (Spouse/Dependent Child(ren) Information), block 9 (Spouse's Name), he listed the applicant as his spouse; b. Section IV (Coverage), block 12 (Options), the FSM elected Option C (Immediate Annuity) to provide an immediate annuity beginning on the day after date of his death, whether before or after age 60; c. Section IV, block 13 (Type of Coverage), he elected "Spouse Only"; d. Sectrion V (Level of Coverage), block 14, he elected "Full Retired Pay"; e. Section IX (Member Signature), block 19, he signed the form on 1 June 2004; f. Section X (Spouse Concurrence), block 21, the applicant signed the form on 2 July 2004; and g. Section X, block 22 (Printed Name of Notary Public), the applicant's signature was notarized on 2 July 2004. 6. The FSM was discharged from the Michigan Army National Guard on 1 October 2004 and assigned to the Retired Reserve. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 20 years, 7 months, and 26 days of creditable service for retired pay. 7. The FSM's Certificate of Death shows his date of death as 8 November 2008 and his marital status as divorced at the time of his death. 8. The applicant's DD Form 2656-7, dated 12 May 2017, shows she requested the RCSBP annuity. Item 2h (Relationship to Decedent) shows she marked "Spouse." Item 3a (I certify that I was legally married to the Member on the Date of Death) shows she did not mark either "Yes" or "No" block; however, she entered the date "19940624" in block (1) (If yes, please verify date of marriage to member). She did not enter the date of their divorce. 9. On 10 July 2017, HRC informed the applicant that her application for a Survivor Benefit Plan annuity based on the military service of her late husband was denied. HRC states: a. According to Title 31, U.S. Code, section 3702, any claim against the Government must be submitted within 6 years. The statute of limitations for her claim was reached on 8 November 2014 and unfortunately HRC does not have jurisdiction to process her application. b. The ABCMR was established for the express purpose of considering the existence of error or injustice and to make appropriate recommendations for corrective actions. She may apply to the ABCMR. 10. A review of the FSM's Army Military Human Resource Record does not show the divorce decree or a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage). BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that partial relief was warranted. 1. The Board found sufficient evidence to grant that portion of the applicant’s request that pertains to the SBP annuity. The applicant and FSM divorced in 2000 prior to the FSM becoming eligible to participate in RCSBP. The divorce decree does not direct election of former spouse SBP coverage. When the FSM was issued the 20-year letter in March 2004, he attempted to elect immediate (Option C) RCSBP coverage for the applicant – though why he listed her as his spouse and not former spouse is unclear. It does not appear the applicant and FSM remarried after the 2000 divorce and he is listed as divorced on the death certificate. However, it seems clear his intent was to provide her with the SBP annuity. A member who has a former spouse when becoming eligible to participate in RCSBP may elect former spouse coverage at that time. See DOD Financial Management Regulation (FMR) 7000.14-R, vol. 7b, ch. 54, section 540602.B. As such, because the Board determines a preponderance of the evidence supports granting relief, the action would be to correct the record to reflect the FSM elected former spouse (not spouse) immediate RCSBP coverage upon receipt of the 20-year letter in 2004 that was received and processed by the appropriate office. This records correction would remove the statute of limitations issue imposed by Title 31, U.S. Code, section 3702 (the Barring statute). 2. The Board found insufficient evidence to grant that portion of the applicant’s request that pertains to her request for amendment of the FSM’s records to authorize her issuance of military ID cards and other benefits. From the evidence of record, the applicant and FSM married in 1994 and divorced in 2000. Because they were not married for 20 years (the 10 year spousal abuse exception appears inapplicable to this case nor were they married for 10 years), the applicant is not eligible for enrollment into DEERS or issuance of an ID card as the former spouse based on the 20/20/20 or 20/20/15 rules (20 years marriage, 20 years creditable service for retirement, and 20 or 15 years overlap between the marriage and the service). As such, the Board denied this portion of the requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reflecting the FSM elected former spouse (not spouse) immediate RCSBP coverage upon receipt of the 20-year letter in 2004 that was received and processed by the appropriate office. This records correction would remove the statute of limitations issue imposed by Title 31, U.S. Code, section 3702 (the Barring statute). . 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the applicant’s request for amendment of the FSM’s records to authorize her issuance of military ID cards and other benefits. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015468 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1