ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 15 October 2019 DOCKET NUMBER: AR20180004824 APPLICANT REQUESTS: in effect, * change her Reserve Component Supplemental Survivor Benefit Plan RCSSBP) from children only to former spouse * change her former spouse RCSSBP from spouse and children to former spouse APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * property settlement agreement from divorce decree * applicant’s ARPC Form 3854 (RC-SSBP Election Certificate) * applicant’s DD Form 1883 (Survivor Benefit Plan (SBP Election Certificate) * former spouse’s DD Form 1883 * former spouse’s ARPC Form 3854 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 states in effect: a. She is requesting to be allowed to submit DD Form 2656-10 (Deemed Election and DD From 2656-1 (Change Coverage) to abide by the terms of her divorce decree. When she received her notification of eligibility for retired pay at age 60 (20 Year Letter) she elected for her coverage to be children only with immediate coverage and her former spouse elected for spouse and children at the age of 60. b. She and her former spouse divorced 10 years after she was reassigned to the retired reserve. In the property settlement they agreed to elect each other as the sole beneficiary of their RCSSP. Neither of them took the proper steps necessary to change their elections to former spouse. The was an oversight on her part as the divorce was extremely traumatic to her and her former spouse was not willing to assist in all the work that came out of the divorce. She spent a year attempting to sell their home and ultimately arranging a deed in lieu of foreclosure and disposing of the contents of their home. Two months after vacating her home she was laid off and was out of work for 11 months. With the lack of income she was forced to file for bankruptcy and had to relocate to accept a job offer. When she submitted her applicant to receive her retired pay is when she realized that this paperwork was not submitted. 3. The applicant provides: a. The property settlement agreement from the divorce decree between the applicant and her former spouse. Page 3 of the agreement in effect states, each party agrees to assign any SBP on each party’s pension over to the other as the sole beneficiary. b. The applicant’s ARPC Form 3854 dated 31 December 1996, shows that she elected to decline coverage under the RCSSBP. c. The applicant’s DD Form 1883 dated 2 January 1997, shows that she elected children only, full retired pay with immediate coverage. Her spouse was X___ Xx.__ and their date of marriage was 23 June 1979. This document was signed by both parties. d. The former spouse’s DD Form 1883 dated 2 January 1997, shows that he elected spouse and children, full retired pay with coverage at age 60. His spouse was the applicant. This document was signed by both parties. e. The former spouse’s ARPC Form 3854 dated 31 December 1996, shows that he elected to decline coverage under the RCSSP. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army (RA) on 23 September 1976. b. She reenlisted in the RA on 28 January 1980. c. DA Form 1695 (Oath of Extension of Enlistment) dated 12 March 1982, she extended her enlistment for 29 months. d. She enlisted in the United States Army Reserve (USAR) on 17 June 1985. e. She was released from active duty on 20 June 1985 with an honorable characterization of service under provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 (Separation for Expiration of Service Obligation) and assigned to the USAR Control Group (Reinforcement). Her DD Form 214 (Certificate for Release or Discharge) shows that she completed 8 years, 3 months, and 27 days of active service. f. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 9 May 1988, she extended her enlistment for 6 months. g. She reenlisted in the USAR on 13 October 1988. h. Her DD Form 214 shows that she was ordered to active duty in support of Operation Desert Shield/Desert Storm on 4 February 1991. She was released from active duty on 29 September 1991 with an honorable characterization of service under the provisions of AR 635-200, chapter 4. Her DD Form 214 shows that she completed 7 months and 26 days of active service. i. She reenlisted in the USAR on 20 September 1994. j. Her DD Form 214 shows she was ordered to active duty on 24 April 1996. She was released from active duty on 28 July 1996 with an honorable characterization of service under the provisions of AR 635-200, chapter 4 (Completion of Required Active Service). Her DD Form 214 shows that she completed 3 months and 5 days of active service. k. USAR Personnel Center memorandum dated 7 October 1996, notified her of eligibility for retired pay at age 60 (20 Years Letter). l. ARPC Form 3854 dated 31 December 1996, shows that she elected to decline coverage under the RCSSBP. m. DD Form 1883 dated 2 January 1997, shows that she elected children only, full retired pay with immediate coverage. Her spouse was X___ Xx.__ and their date of marriage was 23 June 1979. This document was signed by both parties n. Headquarters, 88th Regional Support Command Order Number 97B-159-09 dated 8 June 1997, assigned her to the USAR Control Group (Retired Reserve) on 1 June 1997 under provisions for AR 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 6-1a (2) (Transfer to Retired Reserve, Completion 20 Years of Service). o. DD From 2656 (Data for Payment of Retired Personnel) dated 19 January 2018, shows that she elected not to participate in SBP. p. U.S. Army HRC Order Number C07-895545 dated 2 July 2018, placed her on the retired list on 5 July 2018. 5. By law, Soldiers who complete twenty or more years of service are issued a 20-Year Letter informing them of their retirement eligibility. They 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 days of receipt of their letter. By not submitting an RCSBP election when he/she received his/her 20-Year Letter, a Reserve Component Soldier effectively deferred his/her election until age 60 when he/she applies for retired pay. 6. Although the law has been changed to make RCSBP spouse coverage immediate and automatic unless a spouse concurs with a declination or delay in coverage, Congress specifically declared the change effective beginning with those 20-Year Letters issued after 1 January 2001. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions were carefully considered. The divorce decree shows each party would elect former spouse coverage for one another; however, the elections were a not made. The applicant would like to change her election and deem an election under her formers spouse. Each party has reached the age of 60, and receives retired pay. The Board agreed to correct the record to show each party elected former spouse SBP coverage the day prior to their 60th birthday. 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 individuals concerned be corrected by showing a. she properly elected former spouse coverage under the Survivor Benefit Plan on 5 July 2018, and her election was received and processed in a timely manner by the appropriate DFAS office; and b. she properly deemed a former spouse election under the Survivor Benefit Plan of her former spouse on 30 July 2018, and her election was received and processed in a timely manner by the appropriate DFAS office; and 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, 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 Records (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. 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 Survivor Benefit Plan (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. Title 10 USC, section 1450, payment of annuity beneficiaries, deemed election upon request by former spouse, if a person is required to elect 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 the following: a. Request from former spouse, 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. A copy of the 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. b. Persons required to make election, a person shall be considered to be required to elect to provide an annuity to a former spouse if the person enters, incident to a proceeding of divorce, dissolution, or annulment, into a written agreement to make such an election and the agreement has been incorporated in or ratified or approved by a court order, or has been filed with the court of appropriate jurisdiction in accordance with applicable State law; or the person is required by a court order to make such an election. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004824 5 1