DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 1 November 2021 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for., AR20180001931 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which the Board recommended denial of the applicant’s request. 2. I have reviewed the evidence presented, findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief to correct an injustice. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that the Department of the Army records of the individual concerned be corrected to show submission of a former spouse SBP election within one year of the divorce decree, that the election was received and processed by the appropriate authority and that the applicant is designated as the Former Spouse beneficiary of the Former Service Member’s SBP annuity. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 March 2022. Request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of this decision and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl CF: ( ) OMPF Deputy Assistant Secretary of the Army (RB) Signed by: Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20180001931 APPLICANT REQUESTS: the records of her former spouse be corrected to show her, X X , as a recipient of his Reserve Component Survivor Benefit Plan (RCSBP). In effect, to deem a former spouse SBP election to her. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney letter, 5 October 2010 * Application for Former Spouse Payments from Retired Pay, signed 7 October 2010 * Attorney letter, 14 October, 2010 * Military Pension Division Order FACTS: 1. The applicant states when she and her ex-husband divorced in 2010, she was awarded half of his retirement benefit and the SBP. Her attorney filed all corresponding paperwork and sent copies to Defense Finance Accounting Service (DFAS). Nothing was heard in response. When her ex-husband retired in 2017, she again inquired on the status of retirement and SBP. Her ex-husband neglected to mark her as a former spouse beneficiary as he was court ordered. She was informed that the only option that she had was to file an appeal to have it corrected. 2. The applicant provides: * Attorney letter, 5 October 2010 to the former spouse with instructions prior to attorney submitting on her behalf to DFAS * Application for Former Spouse Payments from Retired Pay (DD Form 2293), signed 7 October 2010 * Attorney letter, 14 October, 2010 to DFAS enclosing DD Form 2293, divorce decree and military pension division order for garnishment operations * Military Pension Division Order showing X X was married to X X on 15 July 1994 and ultimately divorced on 30 June 2010; X was to be the former spouse beneficiary on X ’s SBP 3. A review of the applicant former spouse’s service records show: a. He was born on xx XXX 19XX. b. Having had prior active service, he enlisted in the Army National Guard (ARNG) on 21 November 2005. c. Divorce decree shows the service member (X ) was married to the applicant (X ) on 15 July 1994. d. The date of their divorce is illegible; however, the military pension division order shows the date of divorce as 30 June 2010. This order stipulated that the applicant (X ) would entitled to former spouse coverage as the beneficiary of the service member's SBP. e. The date he was issued a Notification of Eligibility for Retired Pay at Age 60 is not available due to poor scan of document. However, Army National Guard Current Annual Statement prepared 2 July 2013 shows he had completed 20 years of creditable service for retired pay. The 20-Year Letter stated: (1) He was eligible to participate in the RCSBP. The RCSBP would provide an annuity based on his retired pay to a surviving spouse, spouse and dependent child or children, child or children only, or a person with an insurable interest in him. (2) Upon receipt of this Notification of Eligibility, if he were married, or had a dependent child he would automatically be enrolled in accordance with Title 10, U.S. Code, Section 1448(a)(2)(B) in the RCSBP under option C (Immediate Annuity), Spouse and Child(ren), based on full retired pay unless he elected different or no coverage within 90 days after the date you receive this notification. If he were married on the date of his election, and he elected less than full and immediate coverage, his spouse's concurrence is required by law. That concurrence will be recorded in section IX of DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), and the signature must be notarized. (3) He must complete and return the enclosed DD Form 2656-5 to the address in the letterhead. f. There is no indication he took any action (enroll or elect to not enroll in the RCSBP) after receipt of his 20-Year Letter. g. He was separated from the ARNG and transferred to the Retired Reserve on 30 September 2017. h. There is no evidence the applicant made a change in election for SBP to former spouse within one year of his divorce. Likewise, there is no evidence the applicant deemed a former spouse election within 1 year of her divorce. 4. DFAS corresponded with the former spouse on 26 October 2017 in reference to her correspondence regarding payment of a portion of the retired/retainer pay. The DFAS letter also stated: If her divorce decree specifies that she is to be designated as a former spouse beneficiary for the SBP, she must make a 'deemed election' for SBP coverage within one year of the date of divorce or other court order requiring SBP coverage for her, directly to the DFAS Garnishment Operations. The request must be submitted using a DD Form 2656-10. SBP Request for Deemed Election was completed and signed on 17 October 2011 [sic] 10 November 2017 (presumed date format not followed). 5. Public Law 106-398, 30 October 2000, requires that upon receipt of this 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 spouse concurrence is provided to allow one of the following elections: * Option A (defer enrollment until age 60 when you apply for retired pay) * Option B (enroll and pay an annuity when YOU would have been age 60): (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll child(ren) only * Option C (enroll and pay an annuity immediately upon your death) but: (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll children only. 6. 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. 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Public law provides a suspense for changing a SBP election after retired pay is started. There is no evidence a timely election was made. The Board determined evidence presented does not demonstrate the existence of a probable error or injustice. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. 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. Additionally, 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 3. Public Law 106-398, 30 October 2000, requires that upon receipt of this 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 spouse concurrence is provided to allow one of the following elections: * Option A (defer enrollment until age 60 when you apply for retired pay) * Option B (enroll and pay an annuity when YOU would have been age 60): (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll child(ren) only * Option C (enroll and pay an annuity immediately upon your death) but: (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll children only. 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. 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. //NOTHING FOLLOWS//