ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20180013782 APPLICANT REQUESTS: to add his current wife and daughter to his Reserve Component Survivor Benefit Plan (RCSBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Divorce Decree * Chronological Statement of Retirement Points * Marriage Certificate * Daughter's Birth Certificate * RCSBP Election Certificate * SBP Change Certificate * 20 Year Letter * All Purpose Acknowledgment FACTS: 1. The applicant states: a. He is submitting the application to change his RCSBP beneficiary to add his current spouse and daughter to receive his Army Pension upon his death and to remove his ex-spouse as his RCSBP Beneficiary so she is only allotted what is described in his divorce decree. b. He did not know and was unaware he had a year to make an election/change his RCSBP. He assumed his beneficiary would automatically transfer over to his new spouse once he remarried and notified the Defense Enrollment Eligibility Reporting System (DEERS). That's why he did not submit a DD Form 2656-6 (SBP Election Change Certificate) and DD Form 2656-5 (Election Certificate. He found out on 8 September 2018 when he attended Pre-Retirement training. c. He remarried on 13 January 2011 and his daughter was born on . He was not aware he had to make an election change or add his dependents and assumed it would transfer automatically to his current spouse and child once he remarried. 2. The applicant's service records contain the following documents for the Board's consideration: a. A Chronological Statement of Retirement Points, dated 18 December 2019, which shows the applicant had 31 years, 4 months, and 16 days towards retirement. b. Orders 19-095-00056, published by Headquarters, 63d Readiness Division (USAR), dated 5 April 2019 showing the applicant was assigned to the Retired Reserve effective 30 June 2019. c. A DD Form 2656-5 (RCSBP Election Certificate), dated 18 September 2018, which shows: * the applicant's current spouse is listed as his spouse * the applicant's daughter from his current spouse and former spouse are listed as dependents * the applicant elected immediate annuity * the type of coverage was spouse and children based on his full retired pay * in the remarks section, he requested to add his current spouse as a beneficiary stating he was unaware he had one year to change and add his beneficiary upon remarriage * his current spouse signed the form on 18 September 2018 d. A DD Form 2656-6 (SBP Election Change Certificate), dated 17 September 2018, which shows: * the applicant's current coverage is former spouse and child * his requesting to change the coverage due to remarriage and divorce * he wants to change the coverage to spouse and children * he wants coverage based on his full retired pay * his current spouse is listed under spouse's name * his daughter from his current marriage and his daughter from his former marriage are both listed e. A letter from US Army Human Resources Command, dated 27 March 2008, subject Notification of Eligibility of Retired Pay at Age 60. 3. The applicant's service records are void of a SBP Election naming his former spouse as his beneficiary. 4. The applicant provides the following documents for the Board's consideration: a. A judgment of dissolution of marriage (reserved issues) regarding the dissolution of his marriage (i.e., divorce) to his former spouse, filed on 3 August 2013, which shows: * a judgment of dissolution of marriage (i.e., divorce decree) was entered and filed on 25 October 2010 * this order regarding reserved issues was entered and filed on 5 August 2013 * his former spouse is entitled to a portion of the applicant's disposable military retired pay * the applicant shall elect a retirement option with the RCSBP naming his former spouse as the former spouse beneficiary for one-half community interest * this election would remain in effect for the lifetime of the applicant * any costs associated with the RCSBP shall be deducted from the applicant's total monthly retired pay b. A Chronological Statement of Retirement Points, dated 15 January 2014. c. A Marriage Certificate showing the applicant and his current spouse were married on 13 January 2011. d. A Birth Certificate showing his daughter was born on. e. A Chronological Statement of Retirement Points, dated 18 December 2019, which was also present in the applicant's service record. f. The applicant's retirement orders, which were also present in the applicant's service record. g. A DD Form 2656-5, which was also present in the applicant's service record. h. A DD Form 2656-6, which was also present in the applicant's service record. i. The applicant's 20 year letter, which was also present in the applicant's service record. 5. The analyst of record contacted the Defense Finance and Accounting Service (DFAS) regarding the applicant's request. DFAS submitted the applicant's divorce decree, DD Form 2656-5, and DD Form 2656-6 which were provided by the applicant and contained in the applicant's service record. DFAS did not have a record of an SBP election in which the applicant named his former spouse as his beneficiary. 6. See below for applicable references. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board found that the applicant was unaware he had a year to make an election/change to his RCSBP and learned about the requirements at his Pre- Retirement training. The Board agreed the record should be corrected to show he submitted a written and timely request to DFAS for RCSBP adding his current wife and daughter. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 adding his current wife and daughter to his Reserve Component Survivor Benefit Plan (RCSBP) and showing his election was received and processed in a timely manner. 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 Reserve Component SBP (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; (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. 3. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 4. 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 chose. 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. 5. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage. 6. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. 7. Title 10, U. S. Code, section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title. 8. Title 10, U.S. Code, section 1450(f) governs changes in election by members who have elected former spouse SBP coverage. A member who elects former spouse SBP coverage may, subject to certain restrictions discussed below, change that election and provide an annuity to his spouse or dependent child. Any such change is subject to the same rules with respect to execution, revocation, and effectiveness as a normal SBP election. Notwithstanding the preceding sentence, a change of election to provide an annuity to a spouse instead of a former spouse may be made, subject to certain restrictions, at any time after the member remarries. A member who, incident to divorce, is required by a court order to elect former spouse coverage or who enters into a written agreement (whether voluntary or required by court order) to make such an election may not change that election unless: a. In a case in which the election is required by a court order, the member furnishes a certified copy of a court order modifying the provisions of all previous court orders relating to such election so as to permit the change in election. b. In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the member furnishes a statement signed by the former spouse and evidencing the former spouse’s agreement to a change in the election. ABCMR Record of Proceedings (cont) AR20180013782 4 1