ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 November 2020 DOCKET NUMBER: AR20190010523 APPLICANT REQUESTS: as the ex-spouse of the former service member's (FSM), to receive benefits of the FSM’s Reserve Component Survivors Benefit Plan (RCSBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from US Army Human Resources Command (HRC) * Verification for Survivor Annuity * FSM's Certificate of Death * marriage license * self-authored letter to HRC * 20-year letter * Direct Deposit Form * Withholding Certificate for Pension of Annuity Payments * RCSBP Election Certificate * NGB Form 22 (Report of Separation and Record of Service) * retirement orders * Retirement Points History Statement * Divorce Decree FACTS: 1. The applicant, the ex-spouse of the FSM, states: * she was not aware she only had six years to make a claim for SBP benefits * she was told she had to wait until her ex-husband's 60th birthday to apply for his RCSBP benefit * she was never contacted about applying for SBP benefits at the time of her ex-husband's death 2. The FSM's record: a. contains a complete copy of his RCSBP Elections, dated 29 July 2003. The FSM choose Option C. RCSBP immediate annuity beginning on the day after his death, whether before or after age 60, for his spouse and children (born in 1992 and 1995) based on his full retired pay. b. is void of the separation agreement and a deemed RCSBP election change to Former Spouse within one year after the date of the decree of divorce. 3. The applicant provides the following documents for the Board's consideration: a. a letter from HRC dated 17 May 2019 denying her request for RCSBP stating the statute of limitation for her claim was reached on 10 December 2012. b. a DD Form 2656-7 (Verification for Survivor Annuity) completed by the applicant requesting RCSBP, dated 19 February 2019. It shows how the applicant and FSM were married on 28 June 1991. They divorced on 6 October 2005. The FSM passed away 10 December 2006. c. a State of Department of Health Certificate of Death showing the FSM died on 10 December 2006 at the age of 44. d. an Marriage License and marriage certificate showing the FSM and applicant were married on 28 June 1991. e. a self-authored undated letter to HRC requesting the FSM’s RCSBP benefits and entitlements. f. the FSM's Notification of Eligibility for Retired Pay, dated 7 July 2003. g. a Direct Deposit Sign-Up Form, dated 28 February 2019, for the applicant to receive RCSBP annuity. h. a Withholding Certificate for Pension or Annuity Payments, dated 28 February 2019 for the RCSBP annuity. i. pages 1 and 3 of the FSM's DD Form 2656-5 (RCSBP Election Certificate), dated 29 July 2003 showing the FSM was married to the applicant and had two children. It is void of the applicant’s RCSBP election and the applicant did not sign in block 21 under spouse. j. the FSM's NGB Form 22 (Report of Separation and Record of Service) showing the FSM honorably retired on 19 August 2003. k. Orders 170-016 published by the State of Ohio Adjutant General's Department, dated 14 August 2003 showing the FSM was discharged and placed in the US Army Reserve Control Group (Retired). l. one page of the FSM's Retirement Points History Statement, dated 11 March 2019 which shows the FSM was eligible for retirement pay at age 60 in the year 2022. m. a divorce decree showing the FSM and applicant were divorced on 6 October 2005. It shows they were satisfied with the division of property listed in the Separation Agreement exhibit A, and Shared Parenting Plan, exhibit B. Exhibits A and B were not included with the divorce decree. The divorce decree provided is void of language regarding RCSBP or the FSM’s retirement pay. 4. Please see below for applicable references. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board carefully considered the FSM former spouse’ request, supporting documents, evidence in the records, regulatory guidance and public law. The Board considered the FSM former spouse statement, the FSM service record and the documents provided by his former spouse. The FSM’s death certificate shows he was a divorced when he passed away. The divorce decree provided is absent of language regarding RCSBP or the FSM’s retirement pay. The Board determined there is insufficient evidence to grant relief. 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. REFERENCES: 1. 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. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 choose. 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. 3. Public Law 98-525, 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. 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 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. 5. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an 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 one year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010523 5