IN THE CASE OF: 
BOARD DATE: 11 February 2022 
DOCKET NUMBER: AR20210008781 

APPLICANT REQUESTS: correction of his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) election to "former spouse" coverage within 1 year of his divorce. 
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) 

• 
DD Form 214 (Certificate of Release or Discharge from Active Duty – Member Copy 1) for the period ending 24 December 2010 

• 
Judicial Circuit Court Final Order and Mediation Agreement, 27 January 2014 

• 
U.S. Army Physical Disability Agency (USAPDA) Order 144-09, 24 May 2018 

• 
National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 27 June 2018 

• 
Office of the Adjutant General, Military Department, Orders 179-824, 28 June 2018 

• 
NGB Form 23B (Army National Guard Retirement Points History Statement), 11 July 2018 

• 
Email Correspondence with Soldier for Life Retirement Services Office, March-April 2021 

• 
Defense Finance and Accounting Service (DFAS) Letter, 5 April 2021, with enclosures – 

• 
DD Form 2656 (Data for Payment of Retired Personnel), 18 July 2018 

• 
Army Retirement Services Office (RSO) Survivor Benefit Plan (SBP) Retiring Soldier Counseling Statement, 18 July 2018 




FACTS: 
1. The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (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. The applicant states: 
a. 
Upon retirement/separation from Fort Jackson, SC, his DD Form 2656 did not accurately reflect his intent and desire to make his former spouse, , the annuitant of his SBP. He would like his DD Form 2656 to reflect this change, making his former spouse the elected annuitant of his SBP benefits. 

b. 
DFAS records indicate there was no election or declination made on the DD Form 2656 submitted with his retirement packet. His intention and belief at the time of retirement/separation was that his former spouse was the elected annuitant as a former spouse. The period has now passed for DFAS to correct this error administratively. He believes the DD Form 2656 was submitted in error in that it did not reflect his desire and intent. SBP payments have been deducted since his retirement/ separation date. 


3. 
The applicant enlisted in the Army National Guard on 13 November 1982. 

4. 
His records show he married . on 2 March 1993. 

5. 
His DD Form 1883 (SBP Election Certificate), 7 December 2002, shows: 

a. 
he indicated he was married with dependent children; 

b. 
he indicated the type of coverage he desired as "Children only" with an annuity at 




the full amount of retired pay; 
c. 
he marked the election status as "Option C (Immediate Coverage) (I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60); 

d. 
he listed his spouse as . and two adopted sons, . and . , as dependent children; and 


e. he and his spouse both signed the form on 7 December 2002. 
6. The Office of the Adjutant General, State Military Department, memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 9 July 2003, notified him that he completed the required years of service for retired pay upon application at age 60. Paragraph 3 states: 
Public Law 95-397, 30 September 1978, created the Reserve Components [sic] 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 Reserve 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 Law you must provide this Command written correspondence (the enclosed DD Form 1883 is required) stating who you have designated as annuitants(s). The cost of 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. 
7. 
He was promoted to the rank/grade of master sergeant/E-8 effective 13 November 2012. 

8. 
He provided and his records contain the Judicial Circuit Court Final Order and Mediation Agreement showing he and his wife, were granted a divorce effective 27 January 2014. The divorce decree does not contain any language pertaining to military retired pay or survivor benefits. 

9. 
His records contain his marriage license and certificate showing he married on 23 April 2015. 


10.His DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows a PEB convened at Fort Gordon, GA, on 11 May 2018 to determine his medical fitness for continued service in the Army. The PEB determined he was physically unfit and recommended a disability rating of 70 percent and placement on the Permanent Disability Retired List. 
11.USAPDA Order 144-09, 24 May 2018, released him from assignment and placed him on the Retired List in the grade of E-8 effective 28 June 2018. 
12.His NGB Form 22 shows he was placed on the Permanent Disability Retired List and transferred to the Retired Reserve effective 27 June 2018. This form shows he completed 35 years, 7 months, and 15 days of total service for pay with 35 years of total service for retired pay. 
13.The Office of the Adjutant General, State Military Department, Orders 179-824, 28 June 2018, honorably discharged him from the ARNG and assigned him to the Retired Reserve effective 27 June 2018. 
14. His military records contain: 
a. his DD Form 2656 (October 2018 version), 5 April 2021, showing in: 
(1) Part III (SBP), Section IX (Dependency Information), no name for a spouse; 
(2) 
Part III, Section X (SBP Election), block 33 (Reserve Component Only – (This section refers to the decision you previously made on the DD Form 2656-5 (RCSBP Election Certificate) when you were notified of eligibility to retire, in most cases you do not have the right to make a new election on this form), he placed an "X" in the box by the statement: "Option C – Previously elected or defaulted to immediate RC-SBP Coverage" and an "X" in the "Yes" block for the statement: "Marital status has changed since your initial election to participate in RC-SBP"; 

(3) 
Part III, Section X (SBP Election), block 34 (SBP Beneficiary Category(ies)) and block 35 (SBP Level of Coverage), no election entries; 

(4) 
Part III, Section X (SBP Election), block 38 (Former Spouse Information), the name of his former spouse as . with a date of divorce of 27 January 2014; 

(5) 
Part IV (Certification), Section XI (Certification), block 39 (Member), he signed the form on 5 April 2021 and his signature was witnessed on the same date by the RSO at . 

b. 
his DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), 5 April 2021, showing in: 

(1) 
Section I (Election of Coverage – Retired Members Only), block 1 (Due to Divorce, Change My SBP Coverage to), he placed an "X" in the "Former Spouse" block; 

(2) 
Section II (Retired and Retiring Members), he indicated "No" to the following three questions: 

• 
Are you currently married? 

• 
Is this election being made pursuant to the requirements of a court order? 

• 
Is this election being made pursuant to a written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution, or annulment? 



(3) 
Section II, block 8 (Date Divorced from Former Spouse), he entered 27 January 2014; in block 9 (Has Former Spouse Remarried?), he placed an "X" in the "No" box; and in block 10 (Dependent Children), he did not list any dependent children; 

(4) 
Section III (Certifications – Retired and Retiring Members and Former Spouses), block 12 (Member), he and his witness signed and dated this form on 5 April 2021; and in block 13 (Former Spouse to be Covered), he listed ". " and she and her witness signed and dated this form on 5 April 2021; and 

c. 
his DD Form 108 (Application for Retired Pay Benefits), 5 April 2021, showing he requested to receive retired pay on 5 March 2022; 


15. He additionally provided the following documents not previously discussed: 
a. 
his DD Form 214 (Member Copy 1) for the period ending 24 December 2010 showing he was released from active duty and transferred to the Army National Guard. Block 18 (Remarks) states he served in Afghanistan from 20 February 2010 through 17 November 2010; 

b. 
email correspondence with the Soldier for Life Retirement Services Office, March-April 2021, concerning his SBP; and 

c. 
a DFAS letter, 5 April 2021, with enclosures wherein he requested his documents. These enclosures were: 


(1) his DD Form 2656 (January 2018 version), 18 July 2018, showing in: 
(a) 
Part III (SBP), Section IX (Dependency Information), no name of a spouse; and block 32 (Dependent Children), no entries for dependent children; 

(b) 
Part III, Section X (SBP Election), block 33 (Reserve Component Only), block 34 (SBP Beneficiary Categories), and block 35 (SBP Level of Coverage), are void of any options; 

(c) 
Part III, Section X (SBP Election), block 38 (Former Spouse Information), no entries; and 

(d) 
Part IV (Certification), Section XI (Certification), block 39 (Member), he signed the form on 18 July 2018 and his signature was witnessed on the same date by the RSO at Fort Jackson, SC. 

(2) 
his Army RSO SBP Retiring Soldier Counseling Statement, 18 July 2018, showing he was counseled by an Army SBP Counselor regarding the SBP Program. Both he and the counselor signed and dated this form on 18 July 2018. 


16. 
His records are void of a divorce decree from his second marriage. 

17. 
On 14 January 2022, a DFAS pay technician stated the applicant retired on 28 June 2018 and was automatically enrolled with full coverage for spouse because his DD Form 2656 was signed on 18 July 2018, which was after his retirement date, making it invalid. The applicant did not make an SBP election, but the form is not valid due to the signature date. The DFAS database contains the following documents: 

• 
USAPDA memorandum (Permanent Physical Disability Retirement), 24 May 2018 • USAPDA Order 144-09, 24 May 2018 

• 
Office of the Adjutant General, State of Military Department, Orders 179-824, 28 June 2018 

• 
Army RSO SBP Retiring Soldier Counseling Statement, 18 July 2018 

• 
DD Form 2656 (January 2018 version), 18 July 2018 




BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence that shows the applicant intended to have former spouse coverage within one year of his divorce; however, he was not properly counseled on how to make the proper timely election. 
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 that the evidence presented was 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 by showing he properly changed his RCSBP election to former spouse on 28 January 2014, a day after his divorce, and his election was received and processed in a timely manner by the appropriate DFAS office. 

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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. Since its creation, it has been subjected to a number of substantial legislative changes. 

3. 
Public Law 95-397, enacted 30 September 1978, established the RCSBP. The RCSBP provided a way for Reserve Component members, who qualified for Non-Regular (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. Once a member elects either option B or C in any category of coverage, that election becomes irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the 


RCSBP; the options automatically convert to SBP coverage. Three options are 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 the member dies before age 60, but delay payment until the date of the member's 60th birthday • option C – elect that a beneficiary receive an annuity immediately upon the member's death if before age 60 
4. 
 Public Law 97-252, the Uniformed Services Former Spouses Protection Act, enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 

5. 
 Public Law 98-94, enacted 24 September 1983, established former-spouse coverage for retired members. 

6. 
 Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 

7. 
 Public Law 99-661, 14 November 1986, permitted divorce courts to order SBP coverage without the member's agreement in those cases where the retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 

8. 
Title 10, U.S. Code, section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. 

9. 
Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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. 

10. 
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 1 year of the date of the court order or filing involved. 
//NOTHING FOLLOWS//