ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20170019354 APPLICANT REQUESTS: the records of her deceased former spouse, a former service member (FSM) be corrected to show he elected her as the eligible Reserve Component Survivor Benefit Plan (RCSBP) beneficiary as a former spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * three DD Forms 149 (Application for Correction of Military Record) * Marriage License, dated 13 June 1981 * Settlement Agreement, Superior Court of County, State of , Domestic Relations Division, , dated 22 January 2010 * Divorce Decree, Superior Court of Richmond County, State of Georgia, Domestic Relations Division, 1 March 2010 * Death Certificate, dated 14 September 2017 * DD Form 2656-7 (Verification for Survivor Annuity), 12 December 2017 * Form W-4 (Employee's Withholding Allowance Certificate), dated 12 December 2017 * Standard Form 1199A (Direct Deposit Sign-up Form), dated 12 December 2017 * U.S. Army Human Resources Command letter, dated 18 December 2018 * DA Form 5016 (Chronological Statement of Retirement Points), 18 December 2017 FACTS: 1. The applicant states she is entitled to the SBP annuity as a former spouse. Their divorce decree shows she was awarded half of the FSM's military retirement pay. The FSM did pay into the SBP and she was married to him for 28 years and during his time of service. Both her divorce attorney and the FSM's attorney failed to inform her of the SBP annuity during the divorce, but she should be entitled to the annuity as it is an extension of the Uniform Services Former Spouses Protection Act in which she was awarded in her divorce decree. 2. The FSM enlisted in the Regular Army on 26 June 1979. His DD Form 4 (Enlistment/Reenlistment Agreement – Armed Forces of the United States), dated 26 June 1979, shows his date of birth as XX October 1960. 3. On 13 June 1981, the applicant and the FSM were married. 4. On 13 August 1992, the FSM was honorably discharged under the Voluntary Early Transition Program and he was placed in the U.S. Army Reserve Control Group (Reinforcement). 5. On 14 August 1992, the FSM enlisted in the U.S. Army Reserve (USAR). 6. On 29 February 1994, the FSM enlisted in the Army National Guard (ARNG). 7. On 4 February 2003, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). He was given 90 days to complete a DD Form 2656-5 (RCSPB Election Certificate). He was advised that: a. RCSBP was his sole means for protecting his retired pay entitlement. b. Public Law 106-398, dated 30 October 2000, required that upon receipt of a Twenty Year Letter, a qualified Reserve 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. c. Failure to meet this requirement would result in the retention of full coverage for his spouse and children. d. If he elected to remain covered under the automatic provision of the Law, he had to provide his command written correspondence (DD Form 2656-5 (formally DD Form 1883 - SBP Election Certificate) stating who he had designated as the annuitant(s). e. The cost for participation would commence upon his receipt of retired pay at age 60. f. Detailed information concerning RCSBP and cost was provided and any questions could be addressed to his command. 8. On 7 November 2006, the FSM was honorably discharged from the ARNG. 9. On 8 November 2006, the FSM enlisted in the USAR. 10. On 1 March 2010, the FSM and the applicant were divorced. Their divorce decree shows the applicant was eligible for a portion of the FSM's retirement pay under the Uniform Services Former Spouses' Protection Act, she was entitled to receive 50 percent of the FSM's retirement pay as equitable division of property, and the court directed that she receive 50 percent of the FSM's military retirement beginning the first day of the first month following the FSM's retirement from military service and continuing each month thereafter. The divorce decree is silent on Survivor Benefit Plan options. 11. On 30 June 2011, the FSM was assigned to the Retired Reserve. 12. The applicant provided copies of the following: a. a DD Form 2656-7, dated 12 December 2017, wherein she listed herself as the former spouse for a claim to the FSM's RCSBP annuity, with a Form W-4 and Direct Deposit Sign-up Form and b. the FSM's death certificate that shows he died on 14 December 2017 at the age of 56 years old. 13. On 18 December 2017, the Chief, Reserve Component Retirements Branch, U.S. Army, Human Resources Command, denied the applicant's request for payment of an SBP annuity based the FSM's military service. He stated there was no provision in recently enacted "former spouse" legislation that would allow an annuity to be paid to a former spouse unless both parties voluntarily enact the agreement within 1 year of the divorce decree, to provide an annuity in the event of the service member's death. 14. On 21 March 2019, officials at the U.S. Army Human Resources Command advised the SM did not submit any documents after receipt of his 20-Year Letter, dated 4 February 2003. 15. There is no evidence the FSM submitted a DD Form 2656-5 within 90 days of receipt of his 20-Year Letter in which he made an election for spouse or former spouse SBP coverage. Additionally, the FSM died before reaching age 60. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the FSM’s submitted request not to participate in SBP, the Board concluded that relief was not warranted. ? 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. REFERENCES: 1. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 2. 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. 3. Title 10, U.S. Code, section 1448(a)(3)(B), states a married person who is eligible to provide a Reserve-Component annuity may not without the concurrence of the person's spouse elect not to participate in the SBP, to designate under subsection (e)(2) the effective date of commencement of annuity payments under the SBP in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member's birth (rather than the day after the date of the member's death); to provide an annuity for the person's spouse at less than the maximum level; to provide annuity for the person's spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person's spouse. 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. Department of Defense Financial Management Regulation, volume 7B, chapter 30 (Death of a Retired Member) states entitlement to retired pay terminates on the date of the retired member's death. The arrears of pay is the retired member's final month of retired pay prorated and other unencumbered amounts that may be due to the deceased retired member. If the retired member waived retired pay in favor of a civil service annuity, there is no arrears of pay due. A retired member who waived retired pay in order to receive disability compensation from the VA may be due retired pay for the month of death because VA disability compensation entitlement terminates on the last day of the month before death. 6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so choose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. ABCMR Record of Proceedings (cont) AR20170019354 4 1