RECORD OF PROCEEDINGS 
IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210011909 
APPLICANT REQUESTS: 
. correction of her former husband's records to show she is the beneficiary of his Reserve Component (RC) Survivor Benefit Plan (SBP) and entitled to receipt of the annuity 
. a personal appearance hearing before the Board via video/telephone 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) 

. 
State Marriage License, 14 December 1985 

. 
Joint Force Headquarters, Mississippi Army National Guard, Memorandum, (Notification of Eligibility for Retried Pay at Age 60 (20-Year Letter)), 4 January 2012 

. 
DD Form 2656-5 (RCSBP Election Certificate), 25 May 2012 

. 
Judicial District Court Final Judgment of Divorce, 29 October 2013 

. 
DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), 2014 

. 
National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), 30 September 2014 

. 
Joint Force Headquarters, Mississippi National Guard, Orders 274-886, 1 October 2014 

. 
State Certificate of Death, 27 January 2021 

. 
U.S. Army Human Resources Command (HRC) Gray Area Retirements Branch Letter, 2 March 2021 


FACTS: 
1. The applicant, the former spouse of the deceased Reserve Component service member (SM), states: 
a. The SM is deceased. The SM completed a DD Form 2656-1 former spouse nomination (attached) directing survivor benefit pay to her. She filed for the SBP annuity through HRC, but was denied (see attached letter). She requests authorization of the SBP annuity as the SM's former spouse, completing the SM's last wishes and honoring his service. 
b. 
The SM completed the documentation on his own and provided it to her for retention if he passed. He had her get a witness when she signed the form and he had a witness date the form when he signed it. He had her sign the form first and then give back to him to complete, where he signed in front of his witness. HRC informed her that the dates needed to be the same date, but her former spouse did not know this when we accomplished this, nor did he send completed documentation to HRC. He provided her the document to retain. 

c. 
She's asking the Board to correct this minor discrepancy by authorizing her the SBP annuity, honoring his intent and service as a retiree. 


2. 
After a period of enlisted service in the U.S. Army Reserve, the SM enlisted in the Mississippi Army National Guard on 7 June 1993. 

3. 
The applicant and the SM married on 14 December 2014. 

4. 
The Joint Force Headquarters, Mississippi Army National Guard, memorandum (Notification of Eligibility for Retried Pay at Age 60 (20-Year Letter)), 4 January 2012, notified the SM 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 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 2656-5 (formally [sic] DD Form 1883 [Survivor Benefit Plan – Election Certificate]) 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. 

5. 
The SM's records contain his DD Form 2656-5, 25 May 2012, that shows in: 


a. 
Section II (Marital/Dependency Status), he placed an "X" in the "Are you married?" block and an "X" in the "Do you have any dependent children?" block; 

b. 
Section III (Spouse/Dependent Child(ren) Information), block 9a, he listed L____ as his spouse with a date of marriage in 1985; and in block 11 (Dependent Children), he listed L____ (son) and L____ (son); 

c. 
Section IV (Coverage), block 12 (Options), he placed an "X" in the block "Option C (Immediate Annuity). I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60"; 

d. 
Section IV, block 13 (Type of Coverage), he placed an "X" in the "Spouse and Child(ren)" block; 

e. 
Section V (Level of Coverage), he placed an "X" in the "Full Retired Pay" block; 

f. 
Section VII (Remarks), no entries; and 



g. 
Section VIII (Member Signature), he signed the form on 25 May 2012 and his signature was witnessed on the same date in Jackson, MS. 


6. 
The applicant provided a DD Form 2656-5, 25 May 2012 with the same information; however, Section VII (Remarks) contains the following comment: "[iIlegible name], section of this policy will update 13 – or/and Section VI indicated 1-31-2014." 

7. 
The applicant provided and the SM's records contain the following documents: 


a. the Judicial District Court Final Judgement of Divorce with auxiliary documents, which show the applicant and the SM were granted a divorce on 29 October 2013. The divorce documents do not contain any provision awarding the applicant the SM's military retired pay. 
b. The SM completed a DD Form 2656-1 that shows in: 
(1) 
Section I (Election of Coverage – Retied Members Only), block 1 (Due to Divorce, Change My SBP Coverage to), he placed an "X" in the "Former Spouse and Child(ren)" 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 29 October 2013; in block 9 (Has Former Spouse Remarried?), he placed an "X" in the "No" box; and in block 10 (Dependent Children), he listed L____ (son) and L____ (son), indicating neither as disabled; 

(4) 
Section III (Certifications – Retired and Retiring Members and Former Spouses), block 12 (Member), he and his witness each signed and dated this form on 3 September 2014; and in block 13 (Former Spouse to be Covered), he listed "L____" and she and her witness each signed and dated this form on 9 August 2014. 

c. 
The SM's NGB Form 22 shows he was honorably discharged by reason of non-selection for retention by a Qualitative Retention Board and elected reassignment to the 


U.S. 
Army Reserve Control Group (Reinforcement) or Retired Reserve effective 30 September 2014. The NGB Form 22 shows he completed 22 years, 9 months, and 28 days of total service for pay, ending in the rank/pay grade of sergeant/E-5. 

d. 
Joint Force Headquarters, Mississippi National Guard, Orders 274-886, 1 October 2014, honorably discharged him from the Army National Guard and assigned him to the Retired Reserve effective 1 October 2014. 


8. 
The SM's death certificate shows he passed away on 21 January 2021. He was 56 years of age when he passed. The death certificate shows he was married to L____ at the time of his death, who was named as the informant. 

9. 
The SM's records do not contain a marriage certificate for his marriage to L____. 

10. 
The letter to the applicant from the Chief, HRC Gray Area Retirements Branch, 2 March 2021, states: 


This is [to] inform you that your application for a Survivor Benefit Plan (SBP) annuity payments based on the military service of your former spouse (SM) has been denied. 
Survivor Benefit Plan is governed by Title 10, Chapter 73, United States Code Section 1448(b)(3). There is no provision in the law whereby a divorced former 
spouse may be granted a survivor benefit annuity. Further, there is no provision in recently enacted "former spouse" legislation that would allow an annuity to be paid to a former spouse unless both parties voluntarily enact the agreement within 1 year of the divorce decree, to provide an annuity in event of the service member's death. According to the divorce decree, you were not awarded former spouse coverage. The Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) that was submitted is invalid due to the signatures being out of order. By law (service member) and his witness should have signed and dated after you and your witness. Therefore, your application is being denied. 
If you disagree, with our decision, you may appeal by submitting a request to the Army Board of Corrections [sic] using the enclosed Application for Correction of Military Records (DD Form 149). The Army Board for Correction of Military Records (ABCMR) was established for the express purpose of considering the existence of error [or] injustice and to make appropriate recommendations for corrective actions. 
11. On 27 January 2022, a Defense Finance and Accounting Service pay technician stated its database does not contain any paperwork or show the deceased SM as having been on the retired rolls. 
BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within the FSM's military records, the Board found that relief was not warranted. 
a. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

b. 
The applicant's contentions, SM's military records, and regulatory guidance were carefully considered. The applicant alleges that the FSM’s intention to have her named as the SBP beneficiary were unfairly thwarted. However, this alleged injustice resulted from the applicant’s own, and the FSM’s own, failure to act reasonably with regard to important financial planning matters, such as the SBP program. If the FSM truly intended his former spouse to be the named SBP beneficiary, then he and the applicant did not act as reasonably to effectuate that intent. Additionally, the divorce decree pertaining to the applicant and the FSM addresses important financial matters such as life insurance but does not indicate that the FSM was required to designate his former spouse as an SBP beneficiary. The DD Form 2656-1 proffered by the applicant indicates that the FSM designated the applicant as the beneficiary, and that he made this designation less than 18 months after their divorce. Yet, after allegedly completing DD Form 2656-1 in September 2014, the FSM apparently did not submit the document 


to Army or DFAS authorities. Instead, according to the applicant, the FSM gave the document to her for her “to retain.” This rendered the form ineffective, unless submitted to the correct authorities. The burden is on the applicant to prove that an injustice occurred. Board members believed the applicant has not demonstrated this alleged injustice by a preponderance of evidence. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 
XX: XX: 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. 
Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 

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 be name. 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. Three options were 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, 8 September 1982, established SBP coverage for former spouses of retiring members. 


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

6. 
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. 

7. 
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. 

8. 
The Retired Reserve consists of all Reserve officers and enlisted personnel who are otherwise eligible for retired pay but have not reached age 60, who have not elected discharge, and are not voluntary members of the Ready or Standby Reserve; and other retired Reservists under certain conditions. 

9.
 "Gray area" retirees are members who served in the National Guard or Reserve, are qualified for retired pay, and have "retired" from their service (stopped drilling), but are not yet at the age where they can start receiving retired pay. The time between their "retirement" from the service and the date when they are eligible to begin receiving retired pay is the "gray area." The "gray area" applies even if the member is in the Retired Reserve. 


//NOTHING FOLLOWS//