ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 August 2020 DOCKET NUMBER: AR20190008885 APPLICANT REQUESTS: entitlement to the Reserve Component Survivor Benefit Plan (RCSBP) on behalf of the Former Service Member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Dissolution of Marriage dated 14 December 2000 * Certificate of Marriage dated 23 January 2004 * Identification Card * Certificate of Death dated 8 November 2017 * Commonwealth of Virginia Department of Social Services - Notice of Action on Benefits dated 16 July 2018 * Benefit Entitlement FACTS: 1. The applicant states on behalf of the Former Service Member (FSM) that the beneficiary on all documents should be changed from Mrs. to Mrs. due to the FSM’s divorce and later remarriage. Mrs (widow) contests that Mrs. (former spouse) is not entitled to any benefits according to the divorce decree. She adds that the FSM served in the military for 21 years and was scheduled to retire on 2 July 2019. She is currently disabled and needs the income for living expenses. 2. A review of the FSM’s records reflects the following: a. On 28 November 1978 he enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program (DEP). b. On 21 September 1979 he enlisted in the Regular Army. c. On 8 July 1983 (Order# 189-85) he was reassigned to the United States Army transfer point pending release from active duty on 18 September 1983. d. On 18 September 1983 he was released from active duty and transferred into the USAR Control Group (Reinforcement). e. On 18 December 1984 (Order# 185-23) he was honorably discharged from the USAR. f. On 1 December 1988 he reenlisted in the Regular Army. g. On 20 January 1992 he was released from active duty and transferred back into the USAR under the Army Early Transition Program. h. On 14 December 2000 he divorced Mrs.The decree provides that each party shall retain, as their sole and exclusive property, any military retirement, pension, profit sharing or 401K accounts they hold through their respective employers. Further annotated in their decree is the requirement to execute any legal documents necessary to carry out the terms of their decree. The decree is void of a requirement to provide any annuity to either party. i. On 2 January 2003 he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). The letter provides that the FSM must make an election within 90 days to participate in the RCSBP. j. On 17 March 2003 he completed his DD Form 2656-5 electing Option C (Immediate Annuity) – Former Spouse. A review of the FSM’s records are void of a 2656-1 (Survivor Benefit Plan Election Statement for Former Spouse Coverage). k. On 23 January 2004 the FSM married the applicant. l. On 8 November 2017 the FSM was deceased. m. On 15 January 2020 the Human Resources Command (HRC) Gray Area Retirements Branch denied the applicant’s request for entitlement citing that the FSM never changed his previous election made in March of 2003 from Former Spouse coverage. 3. The applicant provides the following: a. Certificate of Dissolution of Marriage dated 14 December 2000 – see 2h. above b. Certificate of Marriage dated 23 January 2004 – see 2k. above. c. Identification Card (ID) reflective of the FSM’s military issued ID at the rank of Sergeant (SGT) / E-5 d. Kentucky Certificate of Death dated 8 November 2017 reflective of the passing of the FSM. Item 23a. contains the applicant’s name and Item 23b. provides that Mrs. is his spouse. e. Commonwealth of Virginia Department of Social Services - Notice of Action on Benefits dated 16 July 2018 reflective of her entitlement to Temporary Assistance for Needy Families (TANF) effective 25 June 2018 in the amount of $187.00. f. Benefit Entitlement reflective of an entitlement to receive $835.00 (after deductions) per month effective 3 January 2019. 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all supporting documents, the Board found insufficient evidence to grant relief. The applicant seeks to change the FSM’s SBP election from former spouse to spouse so that she can receive the SBP annuity. This would adversely affect the rights of the FSM’s former spouse. Despite not being required to by the divorce decree, the FSM voluntarily – as authorized by statute – elected former spouse SBP coverage upon receipt of the 20-year letter. There is nothing in the record reflecting the FSM attempted, or even intended, to change his coverage from former spouse to spouse upon his marriage to the applicant. SBP passes by category, not individual. Only one category of SBP beneficiary may receive the annuity at any one time. Granting relief in this case would adversely affect the rights of the former spouse by eliminating her entitlement to the SBP annuity. There is nothing in the record reflecting the former spouse has relinquished her SBP interest. 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. 10/26/2020 X CHAIRPERSON 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. 2. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making a Reserve Component Survivor Benefit Plan (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. 3. Title 10, USC: a. Section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act (USFSPA) relating to the Survivor Benefit Plan (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. b. 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. If a married person who is eligible to provide a standard annuity elects to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2), that person’s spouse shall be notified of that election c. Section 1448(f)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the plan but who later marries or acquires a dependent child may elect to participate in the plan. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. d. Section 1450(f)(3)(A), permits a former spouse to make a written request that an Survivor Benefit Plan (SBP) election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. 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. 4. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. //NOTHING FOLLOWS//