IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20220000346 APPLICANT REQUESTS: * correction of his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) election from "spouse" to "former-spouse" coverage within 1 year of his divorce in compliance with the divorce decree * a personal appearance hearing before the Board via video or telephonically 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) * Self-Authored Statement, undated FACTS: 1. The applicant states, in effect, he needs to establish former spouse Survivor Benefit Plan (SBP) coverage in compliance with his divorce decree. He sent his divorce decree to the U.S. Army Human Resources Command (HRC), assuming HRC would share the information with other agencies who needed it in order to establish this requirement per the court order. He has no objection to his former spouse receiving the SBP coverage. 2. Following a period of enlisted service in the Regular Army, Army National Guard, and breaks in service, he was appointed as a Reserve commissioned officer of the Army in the Tennessee Army National Guard on 13 May 1997. 3. The Tennessee Army National Guard memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 18 January 2006, 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. 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 [formerly] 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. 4. His DD Form 2656-5 (RCSBP Election Certificate), 21 February 2006, shows in: a. Section II (Marital/Dependency Status), item 7 (Are your Married?), he checked "Yes"; and item 8 (Do you have any Dependent Children?), he checked "Yes"; b. Section III (Spouse/Dependent Child(ren) Information), item 9a, he listed as his spouse with a marriage date in 1980; and in item 11 (Dependent Children), he listed (daughter) and (daughter); c. Section IV (Coverage), item 12 (Options), he checked "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, item 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; and f. Section IX (Member Signature), he signed the form on 21 February 2006 and his signature was witnessed the same date. 5. He was promoted to the rank/grade of lieutenant colonel/O-5 effective 28 October 2011. 6. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was honorably transferred to the U.S. Army Reserve Control Group (Retired Reserve) in the rank/grade of lieutenant colonel/O-5 by reason of resignation effective 15 April 2013. He completed 15 years, 11 months, and 3 days of net service during this period with total service for pay purposes of 29 years, 5 months, and 15 days. 7. HRC Orders C-06-395008, 21 June 2013, retired him and placed him on the Retired List effective 16 April 2013. 8. He reached age 60 in September 2013. 9. The County Chancery Court Final Decree of Divorce, 3 October 2013, with associated divorce documents shows the applicant and were granted a divorce. The Property Settlement Agreement, 16 September 2013, notes the following in the "Retirement" paragraph, in part: All retirement/investment accounts accumulated among the parties will be equally divided, unless set forth alternatively below. Specifically, Wife [former spouse] is awarded 1/2 of Husband's [applicant's] military retirement account accumulated from the date of the marriage, March 20, 1980 until the date of entry of the Final Decree of Divorce. The parties acknowledge that in no event will Wife's share of Husband's military retirement be less than $728.18 each month. In the event that it is, Husband will pay the difference as alimony in futuro [in the future]. The parties further acknowledge that Wife's one-half portion of the military retirement may be greater than $728.18 and that she will be entitled to cost of living increases. Husband will maintain Wife as beneficiary of his military retirement account, which, at his death, is expected to be $1784.75 to Wife, should she survive Husband. 10. The electronic mail correspondence from a Defense Finance and Accounting Service (DFAS) pay technician, 16 June 2022, notes the applicant retired with SBP spouse coverage. His current SBP status is "No Beneficiary" as of 3 October 2013 due to divorce and the former spouse's failure to apply within 1 year of divorce or an award of SBP coverage in the divorce decree. In a response to a Congressional inquiry, 10 September 2021, DFAS noted they were unable to add the former spouse as an SBP beneficiary as it was not awarded in the final divorce decree. The decree only addressed arrears of pay. The spouse was removed from the member's SBP and the member was credited in arrears of $22,501.61 on 23 October 2020. The DFAS pay technician further noted the DFAS database contains the following documents: a. the applicant's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) memorandum, 18 January 2006; b. the applicant's original DD Form 2656-5, 21 February 2006, showing he elected Option C with spouse and child(ren) coverage; c. associated documents relating to the applicant's retirement; d. HRC Orders C-06-395008, 21 June 2013, placing the applicant on the Retired List effective 16 April 2013; e. all court documents; f. a DFAS memorandum (SBP), 29 April 2020, noting removal of the applicant's spouse as an SBP beneficiary as the divorce decree did not award SBP coverage or a request was not submitted by the former spouse within 1 year after the court order was filed (deemed election); g. the applicant's DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), showing in: (1) Section I (Election of Coverage – Retired Members Only), item 1 (Due to Divorce, Change My SBP Coverage to), an "X" was placed in the "Former Spouse" block; (2) Section II (Retired and Retiring Members), item 2 (Are you currently married?), an "X" was placed in the "No" block; (3) Section II, item 3 (Is this election being made pursuant to the requirements of a court order?), an "X" was placed in the "Yes" block; (4) Section II, item 4 (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?), an "X" was placed in the "Yes" block; (5) Section II, item 5 (If "Yes" to item 4, was such a voluntary written agreement incorporated in, ratified, or approved by a court order?), an "X" was placed in the "Yes" block; (6) Section II, item 7 (Date Married to Former Spouse), 27 March 1980; (7) Section II, item 8 (Date Divorced from Former Spouse), 13 September 2013; (8) Section II, item 9 (Has Former Spouse Remarried?), an "X" was placed in the "No" block; (9) Section II, item 11 (Remarks) contained the following statements: I started an SBP after retirement, in April 2013. I was divorced in September 2013. I sent a copy of the divorce paperwork to Ft. Knox. I was unaware until my SBP was cancelled in August 2020 that I was supposed to send a copy of the divorce to DFAS. I thought they would automatically notify finance, from the HRC. I received a check minus taxes of the money I already paid into SBP. I have not cashed the check. I would like to get the SBP re-instated and return the check to DFAS. The lawyers spoke to someone at Ft. Knox, during the divorce proceedings to make sure I had the SBP in place for my ex-wife, since it is required as part of the divorce. Please let me know what I can do to correct the paperwork and get the SBP re-instated. (10) Section III (Certifications – Retired and Retiring Members and Former Spouses), the applicant and his former spouse both signed the form with their witnesses on 17 December and 18 December 2020, respectively; and h. a DFAS letter to the applicant's Member of Congress, 13 September 2021, noting the following (see attachment): (1) Retirees have the option to change their RCSBP spouse coverage to former spouse coverage within 1 year of divorce. The former spouse of a retiree also has an option to deem an election. (2) There are two requirements for a deemed election to be valid. The first is that the divorce decree must clearly indicate the former spouse is entitled to coverage under the SBP. The second is the request for a deemed former spouse election must be received within 1 year of the divorce. A former spouse must meet both requirements in order to be the eligible former spouse SBP beneficiary. (3) No valid former spouse election was received within the allotted time frame nor did the divorce decree specifically address the SBP or RCSBP. (4) On 30 April 2020, DFAS received notification of divorce from the applicant and updated his RCSBP account to "no beneficiary." RCSBP premiums were suspended effective 3 October 2013, the date of divorce. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulations. Public law provides a suspense for changing a SBP election after retired pay is started. The Board agreed the record should be corrected to show he submitted a written and timely request to DFAS to change his Reserve Component Survivor Benefit Plan (RCSBP) election from "spouse" to "former-spouse", within 1 year of his divorce in compliance with the divorce decree, with proper spousal concurrence. Therefore, the Board granted relief. 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. 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 Reserve Component Survivor Benefit Plan (RCSBP) election from "spouse" to "former-spouse", within 1 year of his divorce in compliance with the divorce decree, and his election was received and processed in a timely manner by the appropriate DFAS office. 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 Army Board for Correction of Military Records (ABCMR). The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR 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 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 receives 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 97-252, the Uniformed Services Former Spouses Protection Act, 8 September 1982, established SBP coverage for former spouses of retiring members. 5. Public Law 98-94, enacted 24 September 1983, established SBP coverage for former spouses of retired service members. 6. 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. 7. 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. 8. 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) AR20220000346 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1