ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:

		BOARD DATE:  29 April 2019

		DOCKET NUMBER:  AR20190003319


APPLICANT REQUESTS:  in effect, correction of her deceased ex-husband's, a former service member's (FSM's), records to show he elected former-spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP), naming her 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)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service
* Separation and Property Settlement Agreement
* Divorce Decree (not enclosed with application)
* Death Certificate
* Letter, U.S. Army Human Resources Command (HRC), dated 4 May 2016
* Self-Authored Statement

FACTS:

1.  The applicant states an HRC official denied her request to receive a SBP annuity because it was not awarded in her divorce decree.  She was separated from the FSM during his retirement processing and not afforded an opportunity to attend any of his briefings.  Had she been invited to the FSM's briefings, they would have learned the proper language to use to ensure her receipt of SBP.  It was the FSM's intent that she receive an SBP annuity as clearly indicated in section 9 of the Separation Agreement.  She is certain that neither the court, the attorneys, her late ex-husband (FSM), nor she knew about RCSBP and now asks to be granted this relief per her divorce decree.

2.  The FSM was born on XX December XX.

3.  Having prior enlisted service in the Army National Guard (ARNG), the FSM was appointed as a Reserve commissioned officer in the ARNG on 11 June 1981.

4.  The FSM and the applicant (Tracey) were married on 29 October 2000, and they had two children, a son who was born on 1 September 1995 and a daughter who was born on 31 March 1998.

5.  On 31 May 2007, Joint Forces Headquarters, Maryland, 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:

Public Law 95-397, 30 September 1978, created the Reserve Components Survivor Benefit Plan (RCSBP), in which you are entitled to participate.  RCSBP is your sole means of protecting your retired pay entitlement.  NOTE:  Public Law 106-398, 30 October 2000, requires that upon receipt of this Letter, a qualified Reserved 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 different coverage is selected within 90 days of receipt of this letter.  Notarized spousal concurrence is required in order to decline full and immediate coverage for annuitants.  FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN).  If you elect to remain covered under the automatic provision of the Law you must provide this Command written correspondence (the enclosed DD Form 2656-5 (formally [formerly] DD Form 1883) is required) stating who you have designated as annuitant(s).  The cost for this participation will commence upon your receipt of retired pay at age 60.  Detailed information concerning RCSBP program and cost is enclosed.  You must contact this Command for answers to specific individual questions.

6.  On the date of issuance of the 20-year letter, the FSM was married to the applicant and his children from his marriage to the applicant were 9 and 12 years old.  There is no evidence showing the FSM made an RCSBP election within 90 days of issuance of the 20-year letter.

7.  On 31 July 2011, the FSM was separated from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).

8.  The FSM's records contain a memorandum for record from Headquarters, Maryland ARNG, dated 1 November 2012, documenting non-receipt of the FSM's 
DD Form 2656-5 within 90 days after receipt of his 20-year letter.  The memorandum specifically noted:

Soldiers issued their 20 Year NOE [notification of eligibility] after 31 December 2000 who did not make an election within 90 days using DD Form 2656-5, Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, are automatically enrolled in the RC-SBP under Option C for spouse and or children.  Soldiers without a spouse and or children will have Option A automatically elected for them.

9.  The applicant provided a copy of her and the FSM's Separation and Property Agreement, signed by the applicant on 19 June 2013 and by the FSM on 20 June 2013.  Paragraph 9 provides for the FSM's "Military Retirement."  It states:

By virtue of Husband's [FSM's] service with the National Guard, Husband [FSM] expects to receive at age 60, retired pay from the United States National Guard.  The parties agree that Wife [Applicant] shall receive, once the Husband [FSM] begins to receive such retired pay, that percentage of the Husband's [FSM's] disposable retired pay computed by the following formula:  The Wife [Applicant] shall receive 50% of the marital share, with the marital share being determined by a fraction the numerator of which is the number of creditable retirement points earned by Husband [FSM] from his creditable military service, of whatever type including among other things any reserve duty and any active duty, between October 29, 2000 and May 14, 2010, and the denominator of which is the total number of creditable retirement points earned by Husband [FSM] from his ultimate creditable military service, of whatever type including among other things any reserve duty and any active duty (i.e., the percentage to which Wife [Applicant] is entitled of Husband's [FSM's] disposable retired pay shall be computed by dividing the creditable retirement points earned by Husband [FSM] from his creditable military service between October 29, 2000 and May 14, 2010 by the total number of creditable retirement points earned by Husband [FSM] from his ultimate creditable military service and then multiplying that fraction by 50 percent).  The payments shall commence to the Wife [Applicant] beginning in the month in which the Husband [FSM] receives his first payment of retired pay.  The military retired income paid to the Wife [Applicant] shall be considered an asset acquired during the marriage and not as spousal support, alimony or support and maintenance payments.  Wife [Applicant] shall include in her gross income for the tax years of receipt and be responsible for the payment of income taxes thereon, of all military retired income that she shall receive by virtue of the assignment of benefits herein.

10.  The FSM died on 15 January 2016.  He was 56 years of age at the time.  His death certificate shows him as divorced.

11.  The FSM did not receive Reserve retired pay.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The former spouse is ineligible to receive SBP of the deceased FSM for several reasons.  

1.  The divorce decree does not award the former spouse SBP or any other type of annuity; the divorce decree only considers the FSM’s retired pay. The FSM was deceased before he received retired pay.

2.  Even if the FSM had SBP coverage for his then wife, once the couple divorced in 2013, the ex-spouse had one year from the date of divorce to make a written request that an election for SBP was deemed to have been made.  There is no evidence that the ex-spouse submitted a written request within one year from divorce to deem the SBP.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:  X	:X	:X	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.



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)(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. 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 one year after the date of the decree of divorce, dissolution, or annulment.
5.  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.  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.



ABCMR Record of Proceedings (cont)	AR20190003319



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