ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20180002148 APPLICANT REQUESTS: The applicant the former spouse of the Former Service Member (FSM) requests: * to be reinstated as the Survivor Benefit Plan (SBP) annuitant * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate (applicant and the FSM), dated * Divorce decree (applicant and the FSM), dated 28 February 1996 * Marriage Certificate (applicant and the FSM), dated * Divorce decree (applicant and the FSM), dated 7 February 2005 * Marriage Certificate (applicant and dated * Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement points), dated 28 June 2011 * Email, dated 13 June 2011 * HRC letter, dated 13 June 2011 * W-4P (Withholding Certificate for Pension and Annuity Payments), dated 5 July 2011 * SF 1199A (Direct Deposit Sign-Up Form), dated 7 July 2011 * U.S. Army Human Resources Command (HRC) letter, dated 1 September 2011 * Divorce decree (applicant and dated 18 January 2018 * Death Certificate, FSM, dated 25 January 2018 * DD Form 1883 (SBP Election Certificate) * DD Form 2656-7 (Verification for Survivor Annuity), undated * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20- Year Letter) 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 (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 is asking the Board to honor the SBP election made by the FSM. At the time of his retirement, they had been married for more than 10 years of his military service. In 2004 they divorced. The FSM passed in April 2011 just 6 months before he could draw his military retired pay. Upon his death she submitted the necessary forms to begin drawing SBP and the request was denied. She was informed that due to the fact she remarried before the age of 55 she was not entitled to the benefit. Prior to this she had never been informed of the remarriage clause. In January 2018 her second marriage ended in divorce. Therefore, she is asking the Board to correct the injustice of denied benefits based on Title 10, USC, chapter 73, section 1450 (B) (3). 3. A review of the FSM’s service records show the following on: * the FSM was born * 18 November 1982 – having had prior enlisted service in the Indiana Army National Guard (INARNG), the FSM enlisted in the Florida Army National Guard * 12 October 1985 – the applicant married * 23 March 1995, FLARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year letter) * 7 May 1995- the FSM completed a DD Form 1883 (SBP Election Certificate) indicating he was married to the applicant and they had a dependent child born in 1979 who was not disabled; he elected RCSBP coverage under Option C (immediate coverage) based on the full amount * 8 August 1995 – Orders Number 220-082, issued by the Office of the Adjutant General, discharged the FSM from the ARNG and assigned him to the Retired Reserve effective 18 July 1995 * 18 July 1995 – the FSM was honorably released from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired) * 15 June 2011, the FSM was issued order placing him on the retired list effective 13 October (age 60), in grade E-7 * 29 August 2019 – the analyst of record inquired with DFAS as to whether the FSM had completed a former spouse election, a DFAS official replied stating: * the FSM had former spouse full coverage effective 7 June 1995 with a divorce date of 1 December 2003 [sic] and his former spouse was * his current spouse election was effective 13 October 2011 4. The applicant provides: * Marriage Certificate showing the applicant and FSM were first married on 12 October 1985 * Divorce decree showing the applicant and FSM were first divorced on 28 February 1996, it is silent in regards to SBP * Marriage Certificate showing the applicant and FSM were married for the second time on 12 October 1997 * Divorce decree showing the applicant and the FSM were divorced for the second time on 7 February 2005, item 5 states the FSM shall execute all documents that may reasonably entitle the applicant to SBP from the FSM’s military retirement if eligible * Marriage certificate showing the applicant married on 28 December 2007, she was 44 years of age when she remarried * email suggesting the applicant was making an inquiry into applying for SBP benefits * HRC letter wherein an HRC official provided the applicant a DD Form 2656-7 and a list of documents to be submitted with the SBP claim * The following documents were submitted as a part of the SBP claim to HRC: W-4P, SF 1199A, DD Form 2656-7, and ARPC Form 249-E * HRC letter to the applicant wherein an HRC official informed the applicant Title 10 USC, chapter 73, section 1450 (B)(2) did not allow an annuity to be paid if the former spouse or surviving spouse remarried before reaching age 55, therefore she was not entitled to benefits * Divorce decree showing the applicant (54 years of age) and were divorced on 18 January 2018 * FSM Death Certificate showing the FSM died on 12 April 2011 (at 59 years of age) and the informant was his companion (the death certificate reflects he was unmarried/divorced when he died) * 20-Year Letter, dated 23 March 1995, notifying the FSM he had completed the required years of service to be eligible for retired pay upon application at age 60 * DD Form 1883, signed 7 May 1995, showing at the time the FSM made his SBP election he was married to the applicant (12 October 1985) and he elected spouse and children coverage under option c (Immediate Coverage) 5. The applicant and the FSM were married when he elected immediate spouse and children RCSBP coverage in May 1995. Their second divorce decree, dated in February 2005, reflects the FSM agreed to elect former spouse SBP coverage – described as “survivor benefits from [his] military retirement” – for the applicant. It is unclear from the record whether the FSM elected former spouse SBP coverage within one year of his divorce to the applicant. In December 2007, the applicant, prior to attaining the age of 55, married another individual (not the FSM). The FSM died in April 2011. The marriage between the applicant and was terminated by divorce in January 2018. 6. See applicable SBP laws below. 7. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The evidence shows the applicant and the FSM were married when he elected immediate spouse and children RCSBP coverage in May 1995. They were divorced on 28 February 1996. Their divorce decree does not address the SBP. Once they were divorced, she was no longer an eligible SBP beneficiary. They married for the second time on 12 October 1997. Because the FSM already had spouse RCSBP coverage, and she became his spouse, she was an eligible beneficiary. b. The FSM and applicant were divorced for the second time on 7 February 2005. She became a former spouse. Their divorce stipulated that the FSM would execute all documents that may reasonably entitle the applicant to SBP from the FSM’s military retirement if eligible. However, there is no indication the FSM changed his SBP election from spouse coverage to former spouse coverage within one year of their divorce. Likewise, there is no indication the applicant deemed the election within one year of her divorce from the FSM. In December 2007, the applicant, prior to attaining the age of 55, married another individual (not the FSM). The marriage between the applicant and was terminated by divorce in January 2018, after the FSM’s death. c. The FSM died on 12 April 2011; his Death Certificate shows he died at 59 years of age and the informant was his companion (the death certificate reflects he was unmarried/divorced when he died). However, it is unclear if the FSM himself remarried after his divorce from the applicant and/or divorced a person other than the applicant before his death. d. By law (10 USC 145), the SBP annuity will be terminated if the former spouse remarries before reaching age 55. If the surviving spouse or former spouse remarries before reaching age 55 and that marriage is terminated by death, annulment, or divorce, payment of the annuity shall be resumed effective as of the first day of the month in which the marriage is so terminated. The applicant’s marriage was before age 55 and that marriage was terminated by divorce, after the FSM’s death. Based on the evidence, the Board determined relief is warranted. 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 individual concerned be corrected by: * showing the FSM timely changed his SBP election from spouse coverage to former spouse coverage within 1 year of his divorce from the applicant (7 February 2005) * showing the FSM’s request to change SBP beneficiary was timely received an accepted by the appropriate office * establishing an SBP annuity for the applicant based on the FSM’s death on 12 April 2011, to be effective the first day of the month in which the marriage is so terminated (18 January 2018) 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 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, the Reserve Component SBP, 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. 3. Title 10, USC, section 1448(b)(3) 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 one 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. 4. Title 10 USC, section 1450 states the SBP annuity will be terminated if the former spouse remarries before reaching age 55. If the surviving spouse or former spouse remarries before reaching age 55 and that marriage is terminated by death, annulment, or divorce, payment of the annuity shall be resumed effective as of the first day of the month in which the marriage is so terminated. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20180002148 1 1