ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 






IN THE CASE OF:  BOARD DATE:  23 April 2020 DOCKET NUMBER:  AR20190011039 


APPLICANT REQUESTS:  retroactive election of deemed former spouse resulting in Reserve Component Survivor Benefit Program (RCSBP) entitlements being awarded. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Self-Authored letter

.2 x DD Form 214 (Certificate of Release or Discharged from Active Duty)

.DD Form 215 (Correction to DD Form 214)

.Army National Guard Current Annual Statement

.Divorce Decree dated 30 December 2015

.Certificate of Marriage

.Certificate of Death

.Last Will and Testament

.Photos and Poem



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 Correctionof Military Records (ABCMR) conducted a substantive review of this case anddetermined it is in the interest of justice to excuse the applicant's failure to timely file.

2.The applicant states that she is the former spouse of the former service member(FSM).  In a very heartfelt letter she recounts in vivid reflection the shared history ofher relationship, marriage and subsequent divorce from the FSM.  She offerstestimony as it relates to his deployment and the changes in his behavior (alcoholabuse) noted upon his return.  She then discusses the loss of their home, vehiclesand inability to manage their finances.  The birth of their youngest child appeared toresult in a positive change in the behavior being exhibited by the FSM.Complications experienced throughout their pregnancy resulted in the applicanthaving several surgeries for heart related issues as well as other conditions.  Shetoo resorted to alcoholism as a coping mechanism.  At some point a heated
argument ignited a sequence of events resulting in the initiation of their divorce.  With this she contest that she was not represented well by her attorney and does not recall signing the documents presented.  Despite the divorce, their relationship was one of favor.  They continued to share in the role of parenting their children and when asked, the FSM advised her that both her and their kids were on all his military documents.  Had he known that the documents needed to be adjusted to reflect former spouse he would have addressed it.  The letter in its entirety is available for  review within the attachments.  







































3.A review of the FSM’s records reflects the following on:• – he was born•7 April 1989 – he enlisted in the Army•22 February 1999 (Order# 053-006) – he was ordered to active duty within the Active Guard Reserve (AGR)•2 July 2005 – he married the applicant•9 May 2009 – he received a 20 year letter•20 May 2009 – he completed and submitted his DA Form 2656-5 (Reserve Component Survivor Benefit Plan Election Certificate); elected coverage for his spouse and children•5 January 2011 (Order#004-001)– he was released from the AGR•6 April 2011 (Order# 004-018) – he was discharged from the Army National Guard after having served 22 years and placed in the Retired Reserve•30 December 2015 – he and the applicant were divorced•10 September 2018 – he passed away•3 July 2019 – letter from the Human Resources Command Reserve Component Retirements section approving the RCSBP annuity payment entitlement for the FSM’s biological dependent daughter Ms. R_4.The applicant provides the following:•DD Form 214 dated 8 October 2007 – reflective of the FSM active service during this period•DD Form 214 dated 15 January 2011 – reflective of the FSM’s active service during this period•DD Form 215 dated 27 October 2009 – reflective of award and previous training changes being made to the 8 October 2007 DD Form 214•Army National Guard Current Annual Statement dated 7 May 2019 –reflective of the FSM having 22 years of service•Divorce Decree dated 30 December 2015 – reflective of the divorce proceedings between the applicant and the FSM; document is void of survivor benefit entitlement orders•Certificate of Marriage dated 2 June 2005 – reflective of the legal marriage between the FSM and the applicant 


.Certificate of Death dated 11 October 2018 – reflective of the passing of theFSM on 10 September 2018

.Last Will and Testament dated 20 October 2005 – reflective of the FSM’sdeclaration pertaining to how his affairs will be settled upon his death; brotherwas awarded as the Executor and his sister as the Trustee



5.See applicable guidance under REFERENCES below.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted.  The applicant’s contentions, the FSM’s military record, and regulatory guidance were carefully considered.  The Board found no evidence that the FSM elected former spouse SBP coverage within one year of his divorce from the applicant.  The Boardfound HRC provided a letter approving the RCSBP annuity payment entitlement for the FSM’s biological dependent daughter and the divorce decree between the applicant and the FSM was void of survivor benefit entitlement orders.  Based on a preponderance of evidence, the Board determined evidence presented does notdemonstrate the existence of a probable error or injustice.   

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: XXX :XXX :XX 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. 

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.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three years after discovery of the alleged error orinjustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the three-year statute of limitations if the ABCMRdetermines it would be in the interest of justice to do so.

2.Public Law 95-397, the Reserve Component SBP (RCSBP), enacted30 September 1978, provided a way for those who had qualified for reserveretirement but were not yet age 60 to provide an annuity for their survivors shouldthey die before reaching age 60.  Three options are available:  (A)  elect to declineenrollment and choose at age 60 whether to start SBP participation; (B)  elect that abeneficiary receive an annuity if they die before age 60 but delay payment of it untilthe date of the member’s 60th birthday; (C)  elect that a beneficiary receive an
annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 

3.Army Regulation 135-180 (Qualifying Service for Retired Pay Non-RegularService) implements statutory authorities governing the granting of “retired pay” tosoldiers and former Reserve components soldiers.  It explains that retired pay is paygranted soldiers and former Reserve components soldiers who have completed 20or more years of qualifying service and have attained age 60.  Orders will be issuedannouncing the effective date eligible persons are entitled to retired pay.  Chapter 3describes the RCSBP.  It clearly states that members who receive their 20-yearletter will have 90 days to elect to participate in the RCSBP and return theDD Form 1883.  Should they fail to do so, they may subsequently elect coverageunder the SBP with their application for retired pay upon reaching age 60.

4.Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of theUSFSPA relating to the SBP.  It permits a person to elect to provide an annuity to aformer spouse.  Any such election must be written, signed by the person making theelection, and received by the Secretary concerned within 1 year after the date of thedecree of divorce.  The member must disclose whether the election is being madepursuant to the requirements of a court order or pursuant to a written agreementpreviously 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 awritten request that an SBP election of former spouse coverage be deemed to havebeen made when the former spouse is awarded the SBP annuity incident to aproceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not bedeemed to have been made unless the request from the former spouse of theperson is received within 1 year of the date of the court order or filing involved.

6.The Uniform Services Former Spouses’ Protection Act (USFSPA) accomplishestwo things:

.it recognizes the right of state courts to distribute military retired pay to aspouse or former spouse (hereafter, the former spouse), and

.it provides a method of enforcing these orders through the Department ofDefense



7.The USFSPA does not automatically entitle a former spouse to a portion of themember's retired pay.  A former spouse must have been awarded a portion of amember's military retired pay as property in their final court order.  The pertinent
court order must provide for the payment of retired pay as property, to a former spouse. 
 
8.  Public Law 97-252, the USFSPA, dated 8 September 1982, 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. 
 
9.  Title 10, USC, 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. 
 
10.  Additional benefits for a former spouse pertain to commissary, post exchange and medical benefits.  To qualify for these benefits under the 20/20/20 test rule the former spouse must prove:  
 
. 20 years of creditable service by the member, and 

. 20 years of marriage, and 

. 20 years of overlap between marriage and the creditable service. 


 
11.  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