BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190013519 APPLICANT REQUESTS: on behalf of the Former Service Member (FSM), correction of his records to reflect former spouse election under the Reserve Component Survivor Benefit Plan (RCSBP) in accordance with their divorce decree. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored letter * DD Form 2656-1 (Survivor Benefit Plan Election Statement for Former Spouse Coverage) * Death Certification * Divorce Decree * Defense Finance and Accounting Service (DFAS) Denial letter * Defense Office of Hearing and Appeals (DOHA) letter * DD Form 2656-7 (Verification for Survivor Annuity) * W-4P (Withholding Certificate for Pension Payments) * Social Security card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. On behalf of the FSM, the applicant, the former spouse, states that upon her divorce from the FSM, she was not aware, nor was the FSM aware of the requirement to make a deemed election within one year of the court order. She contests that she believes that the FSM made an attempt to make this election on 3 December 2007 when he completed the DD Form 2656-1. At this time he listed her as the annuitant. Upon submission to the South Carolina Army National Guard (SCARNG), he was not informed that the application was null and void because he failed to change his SBP annuity election to former spouse within one year of their divorce. Premiums continued to be deducted from his retirement pay monthly totaling over $29,000. Prior to the death of the FSM, she was receiving $500 per month for alimony. Per the Settlement of Property and Support Agreement, the intent of this payment was to be continued in the form of an annuity. She currently has health issues and resides in an assisted living facility. She is in desperate need of this annuity to continue her standard of living. When the alimony payments stopped, she became depressed and had to borrow money from her children to make up the difference. She shared the majority of her youth with the FSM as he was her life partner. Together they parented 4 children. He was a provider and was always there for his family. He intended for her to receive the SBP annuity and thought that he accomplished this by completing the DD Form 2656-1. She was denied this entitlement by DFAS, so she appealed to DOHA from which she has not received a written response. 3. A review of the applicant’s available service records reflects the following on: * 7 July 1952 – he enlisted in the SCARNG * 7 December 1973 – he received his Notice of Eligibility for Retired Pay (20 year letter) * 15 July 1985 (Order# 136-140) – he was released from the SCARNG and placed in the Retired Reserve * 1 July 1994 (Order# P-06-402076) he was placed on the retired list 4. The applicant provides the following a: * DD Form 2656-1 (Survivor Benefit Plan Election Statement for Former Spouse Coverage) dated 3 December 2007 – reflective of the applicant being identified as the Former Spouse to be covered; document is signed by both the FSM and the applicant * Death Certification – reflective of the FSM passing on 14 August 2017 * Divorce Decree dated 17 January 1986 – reflective of their divorce; under “Annuity” it provides the following “The parties do hereby agree and acknowledge that the Husband is vested in the SCARNG Retirement System and that he will execute any and all documents and instruments which may be necessary, upon execution of the within agreement, to make an irrevocable option to the wife of the annuity to provide for her according to the State and Federal laws governing said optional annuity" * Defense Finance and Accounting Service (DFAS) Denial letter dated 8 November 2017 – reflective of their determination to deny annuity entitlement to the applicant because the FSM failed to change his SBP election to former spouse coverage within 1 year of their divorce and she failed to make a deemed election within 1 year of their divorce * Defense Office of Hearing and Appeals (DOHA) letter dated 3 December 2017 – reflective of her statement in contention of DFAS decision to deny her SBP annuity entitlement; information contained within this letter is also reflected in her petition to this board * DD Form 2656-7 (Verification for Survivor Annuity) dated 21 September 2017 – reflective of her verified eligibility for an annuity under the SBP as the former spouse of the FSM 5. See all applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the Former Service Member’s (FSM) record of service, issuance of a 20-year letter and the FSM’s retirement. The Board considered the terms of the divorce decree and the letter from DFAS stating that the FSM did not change the SBP beneficiary election to former spouse within one year divorce and subsequent . Based on a preponderance of evidence, the Board determined that a correction was required to remedy an injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was 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 as follows: - Show that the applicant submitted a timely request to amend his SBP election to Former Spouse within one year of the Divorce Decree dated 17 January 1986; - That his request was accepted and processed by an appropriate official, and; - That the applicant, as the Former Spouse, is entitled to receive the FSM’s SBP annuity. 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 (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. 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-Regular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. It clearly states that members who receive their 20-year letter will have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. 4. Title 10, USC: a. 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. b. 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. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013519 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1