ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180013955 APPLICANT REQUESTS: in effect, correction of her deceased ex-husband's records, a former service member (FSM), to show he elected former-spouse and/or child coverage under the Reserve Component Survivor Benefit Plan (RCSBP), naming her or her son as the beneficiary, and payment of the Survivor Benefit Plan (SBP) annuity. 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) * Self-Authored Statement * Certified Marriage License * Son's Certificate of Birth * Copies of Her and Her Son's Social Security Cards * State of Indiana Decree of Dissolution of Marriage and Settlement Agreement * FSM's Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter) * FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service * FSM's Army National Guard (ARNG) Discharge Orders * FSM's NGB Form 23B (ARNG Retirement Points History Statement) * FSM's Certificate of Death * DD Form 2656-7 (Verification for Survivor Annuity) (page 1 only) * Letter, U.S. Army Human Resources Command (HRC), dated 30 July 2018 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 Army Board for Correction of Military Records (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 states she was married to the FSM for 17 years and that he was her best friend. She endured two tours while the FSM deployed to Iraq and Texas. On 26 June 2013, alcoholism took the FSM's life. She was named the beneficiary of his Servicemembers' Group Life Insurance. She received his retirement papers in the mail the day after his death and within 1 year of the time they were allowed to change their divorce decree. The FSM was unable to complete the beneficiary information because he did not know he had it and/or he died before it was received. Their son was born on 24 May 1996 and was 17 years old at the time of the FSM's death. They were never properly notified regarding the FSM's pension and her son is now too old to qualify as an eligible beneficiary. This is a horrible injustice by the military. She is the sole support for their children and grandchildren. She also pays for their son's education because there is no financial assistance for him although the FSM was an Iraqi war veteran. She was initially approved to receive benefits, but she denied benefits a couple weeks later via email. 3. The FSM was born on X March 1962. He and the applicant were married on 8 July 1995. 4. Having prior enlisted service in the Reserve component, the FSM enlisted in the Indiana ARNG on 23 March 1996. 5. Their son M was born on 24 May 1996. 6. The applicant provided copies of pages 1, 2, 4, and 5 of their divorce decree and settlement agreement, which ordered dissolution of her marriage to the FSM effective 18 September 2012. The divorce decree and settlement agreement contain no reference to the FSM's retired pay or the RCSBP. Page 3 of the divorce decree was not included with application when it was received by the ABCMR and it is not filed in the FSM's military service records. The applicant and the FSM divorced prior to issuance of the FSM's 20-year letter. 7. On 28 March 2013, Joint Forces Headquarters, Indiana National Guard, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The memorandum notified him he completed the required years of service and would be eligible for retired pay at age 60, upon application. The memorandum further informed him: You are eligible to participate in the Reserve Component Survivor Benefit Plan (RCSBP). The RCSBP will provide an annuity based on your retired pay to a surviving spouse, spouse and dependent child or children, child or children only, or a person with an insurable interest in you. Upon receipt of this Notification of Eligibility, if you are married, or have a dependent child you will automatically be enrolled in accordance with Title 10, U.S.C. [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 you elect different or no coverage within 90 days after the date you receive this notification. If you are married on the date of your election, and you elect less than full and immediate coverage, your spouse's concurrence is required by law. That concurrence will be recorded in section IX of DD Form 2656 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), and the signature must be notarized. You must complete and return the enclosed DD Form 2656-5 to the address in the letterhead. We will retain a copy of your completed election with a copy of this notification in your iPERMS [Interactive Personnel Electronic Records Management System] and State records. Detailed information on the RCSBP program and its estimated cost is enclosed. You may contact us with questions on the RCSBP. 8. A copy of the FSM's RCSBP election certificate is not available for review. 9. On 15 June 2013, the FSM was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve). 10. The FSM died on 26 June 2013 at age 51. His death certificate shows him as divorced. The FSM's son with the applicant was 17 years old at that time. 11. The FSM did not receive Reserve retired pay. 12. The FSM's records contain a DD Form 2656-7 that shows the applicant verified her eligibility to receive an annuity under the RCSBP as a former spouse on 24 July 2018. Section 3b (Are there any children under age 24 or incapacitated of the deceased member?) contains her son's name. 13. On 30 July 2018, the Chief, Reserve Component Retirements Branch, HRC, informed the applicant by letter that her application for an SBP annuity based on the death of her late husband was approved. He advised that her claim was forwarded to the Director, Retired Pay, Defense Finance and Accounting Service (DFAS) for processing. 14. On 2 March 2019, a Military Pay Technician, Retired and Annuity Pay, DFAS, informed the applicant by letter that after reviewing the FSM's account, DFAS determined she was not entitled to receive an annuity under the SBP for the following reasons: a. Upon retirement, the FSM elected to cover her under the SBP. However, a spouse loses eligibility as a spouse beneficiary upon divorce. Retirees have the option to change their spouse coverage to former spouse coverage upon divorce within 1 year of the divorce for the change to become effective. b. If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within 1 year of the divorce. A divorce decree alone does not constitute a deemed election. c. The FSM did not make a request to change his election to former spouse coverage nor did the applicant deem an election for former spouse coverage within 1 year of the date of divorce. d. This denial is the final decision of DFAS on this claim. She was advised of her right to submit an appeal to the Defense Office of Hearing and Appeals within 30 days of the date of the letter. 15. There is no evidence indicating the applicant submitted an appeal to the Defense Office of Hearing and Appeals. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board discussed the applicant and FSM being divorced with no agreement regarding SBP, the timing of the Soldier’s 20-year letter and the couple’s son. The Board determined that when the FSM received his 20-year letter, absent an election, his RCSBP should have defaulted to his son. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the Service Member, upon receipt of a 20-year letter; - made a timely election to name his dependent child as recipient of his RCSBP annuity; - his election was accepted and processed by the appropriate authority, and; - that this dependent is entitled to SBP payments for the duration of his eligibility, less any amount collected for premium payments. 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 granting SBP to the applicant. 2 July 2019 X Chairperson Signed by: 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. REFERENCES: 1. 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. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve 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 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 4. Title 10, U.S. Code, section 1448(b)(2)(A), states a member who has a former spouse upon becoming eligible to participate in the RCSBP may elect to provide an annuity to that former spouse. 5. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. 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. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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. 6. 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 (immediate spouse and child(ren), as applicable, coverage). 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.