IN THE CASE OF: BOARD DATE: 16 November 2021 DOCKET NUMBER: AR20210011296 APPLICANT REQUESTS: * correction of his records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his current spouse within 1 year of marriage * a personal appearance hearing before the Board 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) * Marriage License Duplicate Certificate, filed 21 August 1979 and certified 7 June 2000 * Delaware Army National Guard (DEARNG) Orders 248-029, 4 September 2008 * DEARNG Memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 3 March 2009 * The Family Court of State Final Decree, 9 November 2009, with associated divorce documents * DD Form 2656-5 (RCSBP Election Certificate), 25 August 2011 * Marriage Certificate, 22 February 2014, with State Certification of Marriage Record, 4 March 2016 * Email Correspondence (Retirement Questions – Response), 6 January 2020 FACTS: 1. The applicant's military records (i.e., appointment orders or enlistment contracts/records, DD Form 398 (Statement of Personal History), personnel documents, etc.) are not available for review. A thorough review of the integrated Personnel Electronic Records Management System and the Integrated Web Services also failed to reveal any documentation; however, the records systems contained pertinent administrative information. The applicant provided sufficient documentation for the Board to conduct a fair and impartial review of this case. 2. The applicant states he is seeking relief in enrolling his current spouse in the SBP. His unit never counseled him regarding his 20-year letter and about the implications of selection or non-selection of RCSBP coverage while deployed in 2008. Following his divorce on 9 November 2009, he again was not counseled or consulted about his RCSBP options; especially about the 1-year window to make changes. After he remarried on 22 February 2014, he once again was never counseled/consulted regarding the implications nor given an option to select RCSBP coverage. He discovered this error during his retirement preparations in February 2020. 3. His marriage license, , shows he 4. Administrative information in his records shows he was appointed as a Reserve commissioned officer in the Army in the Chaplain Corps on 3 February 1989. 5. DEARNG Orders 248-029, 4 September 2008, ordered him to active duty as a member of his Reserve Component unit in support of Operation Iraqi Freedom on or about 2 October 2008 for a period not to exceed 400 days. These orders show his rank/grade as lieutenant colonel/O-5. 6. The DEARNG memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 3 March 2009, notified him that he completed the required qualifying 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. FAIULURE 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. 7. The Family Court of State Divorce Final Decree, 9 November 2009, with associated divorce documents shows the applicant and were granted a divorce. a. These documents established division of personal property and assets, including his civilian and National Guard pensions. It notes each pension shall be divided by a Qualified Domestic Relations Order pursuant to the Cooper Formula with a 50-percent multiplier and with survivor benefits, if available. b. The Military Qualifying Court Order, 11 February 2011, notes the following in paragraph 3, in part: The monthly payments under paragraph 2 shall be paid as long as the Member has the right to receive the retired pay and shall case at the death of either party. However, upon the death of the Member, the Former Spouse shall be entitled to receive survivor benefits, if available, as provided in this Order. Former Spouse may file a "deemed election" as allowed by statute and regulations. Former Spouse shall be treated as Member's irrevocable beneficiary under the Survivor Benefit Plan (SBP). Former Spouse shall make the necessary "deemed election" in a timely manner to effectuate the SBP coverage for Former Spouse and shall execute such paperwork as is required. The Former Spouse's coverage shall be based on the Spouse-only option and the full amount of Member's monthly retired pay. The Former Spouse of the Member understands that her death prior to that of the Member causes termination of survivor benefit payments an permits the Member to name a new beneficiary, and that the pension (disposable retired pay) reverts to the Member. Payments of Member's retired pay will terminate upon his death, and, therefore, payments to Former Spouse of her award would also terminate. However, the government has established the RCSBP by which payments to a stated beneficiary of a portion of Member's retired pay will continue after his death. Applicable statutes allow a former spouse to be named as a beneficiary under the SBP. At the time Member receives his "twenty year letter'' he must elect Former Spouse to be his valid "Former Spouse" beneficiary. In the event the Member fails to make said election, an amount equal to the present value of SBP coverage for the Former Spouse shall, at the death of Member, become an obligation of his estate. In addition, Former Spouse shall be entitled to such remedies for breach as are available to her in a court of law. Such election shall not be altered or withdrawn during the lifetime of Former Spouse without leave of this Court. Member will select a base amount sufficient to protect Former Spouse's dollar interest in his retirement as calculated in above paragraph 2 and will select the option that will provide the survivor annuity. Former Spouse shall file a "deemed election" request per 10 U.S.C. 1448 [Title 10, U.S. Code, section 1448] in order to effect the conversion. 8. His DD Form 2656-5, 25 August 2011, shows in: (1) Section II (Marital/Dependency Status), block 7 (Are your Married?), he checked "No"; and block 8 (Do you have any Dependent Children?), he checked "No"; (2) Section IV (Coverage), block 12 (Options), he checked "Option A. I decline to make an election until age 60"; (3) Section VI (Insurable Interest Coverage), block 15 (Insurable Interest Coverage), he listed with her date of birth, address, and his relationship to her as "Friend"; and (4) Section VIII (Member Signature), he signed the form on 24 August 2011 and his signature was witnessed the same date by . 9. The marriage certificate, 22 February 2014, and State Certification of Marriage Record, 4 March 2016, each show he married on 22 February 2014. 10. Administrative information in his records shows he was promoted to brigadier general/O-7 effective 1 February 2017. 11. He reached age 60 in June 2019. 12. He also provided email correspondence from the Chief, Standard Installation and Division Personnel Reporting System, DEARNG (Retirement Questions – Response), 6 January 2020, responding to his inquiry regarding retirement questions. This email stated: Your situation is unique with a series of miscues. The general rule is that after a life changing event (marriage, divorce, death) changes should be made within a 12 month window. After consulting with HRC [U.S. Army Human Resources Command] (via NGB [National Guard Bureau] Retirement Services Branch) the below will outline where we are to date with your situation: 20-year letter – March 2009 with a divorce November 2009. Because no election was made within the 90-day window, you were automatically enrolled in Option C, which means your spouse would immediately collect 55% of your retirement base pay. (It is noted that 20 year letter notifications are NOT supposed to occur with Soldiers in theater because the proper counseling between Soldiers and family members wouldn't occur). You will owe 6-8 months (depending on the calculator) of RCSBP premiums. The timeframe [sic] between December 2009 and January 2015 (no eligible dependents) you WILL NOT owe premiums. Why January 2015? You were remarried in February 2014 and had 12 months to make a new election so the calculator picks up again at the 12th month, which is February 2015. RCSBP premiums will now be due from the timeframe [sic] of February 2015 until present and until receipt of retirement pay. My calculation...about six year's [sic] worth of RCSBP premiums, which will be collected upon receipt of retirement pay. Premiums must be paid because in the event your passing away, your current spouse would receive the 55% of your base pay. The DD Form 2656 completed in 2011 is invalid; the 12 month window for changes upon divorce was November 2010. You should apply for your retirement pay as soon as you possibly can (schedule with [names of contacts] as you are within the six month window so the payment delay is minimal or none. Also, once your application is submitted, HRC [U.S. Army Human Resources Command] will have your packet in front of them and can refer to it with any questions or concerns you may have for them regarding the information I am providing you. At the age of 62 and before age 63, you may elect to discontinue RCSBP participation. If the above information and resource doesn't provide you with the answer you are looking for, you may submit an inquiry to the Army Board of Corrections [sic] (ABCMR) for final resolution. 13. He did not provide any information or documentation indicating his former spouse is deceased. He also did not provide any documentation showing the RCSBP coverage election he made at age 60. 14. On 18 October 2021, a DFAS pay technician stated the DFAS database does not contain any orders or SBP documents pertaining to the applicant; however, the database shows he retired on 1 June 2020 with SBP spouse coverage and lists his spouse as with a marriage date of 22 February 2014. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The applicant divorced former-spouse after years of marriage; his divorce documents stipulate a mandatory former spouse RCSBP participation. The applicant failed to respond to non-regular retirement Notice of Eligibility prior to the divorce and also failed to inform DFAS after divorce and settlement action were finalized. He subsequently remarried. His new spouse is listed as SBP beneficiary. The former spouse and applicant have a court-sanctioned decree dated 9 November 2009 that mandated his participation at her expense. His subsequent marriage and the new spouse’s listing as a future SBP beneficiary is problematic that likely will need to be resolved in a Court of law. Alternatively, the applicant may reapply to this Board if he can provide a notarized statement from the former spouse relinquishing her interest as his SBP beneficiary. ? 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: 1. 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. 2. 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. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR may, in its discretion, hold a 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 by name. 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. a. 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 they die before age 60, but delay payment of it until the date of the member's 60th birthday * option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60 b. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive). Once a member elects either option B or C in any category of coverage, that election is 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 RCSBP – it automatically converts to SBP coverage. If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 4. Public Law 98-94, enacted 24 September 1983, established SBP coverage for former spouses of retired service members. 5. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage without the service 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(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011296 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1