ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20220001326 APPLICANT REQUESTS: correction of her former husband's records, a deceased Reserve Component (RC) service member (SM), to show her entitlement to receipt of his Survivor Benefit Plan (SBP) annuity. 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) * Certificate of Marriage, 21 April 1990 * U.S. Army Human Resources Command (HRC) Letter, 6 December 2007 * County District Court Joint Settlement Stipulation, 30 December 2013 * County District Court Decree of Dissolution of Marriage, 2 January 2014 * Headquarters, 88th Regional Support Command, Orders 14-056-00018, 25 February 2014 * County District Court Order Granting Military Retired Pay Division Order, 3 November 2015 * SM's Certificate of Death, 29 April 2021 * DD Form 2656-7 (Verification for Survivor Annuity), 31 May 2021 * HRC Letter, 26 July 2021 * SM's DA Form 5016 (Chronological Statement of Retirement Points), 20 February 2022 FACTS: 1. The applicant, the former spouse of the deceased SM, states she was awarded the SBP in their divorce proceedings. She elected SBP coverage, sent the applicable paperwork to HRC, and was told that all documents were received and in place. As the SM's former spouse, she completed her requirements and it is unfair to deny her claim based on the SM's failure to make the proper SBP election in compliance with the court order. Her former spouse did not fulfill his court-ordered responsibility and this is an injustice that needs to be corrected. 2. The SM and the applicant, were married on 3. On 6 December 2007, the SM was serving in the U.S. Army Reserve in the rank/grade of staff sergeant/E-6. 4. The HRC memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 6 December 2007, notified the SM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. The memorandum further stated he was eligible to participate in the RCSBP and would be automatically enrolled under Option C with spouse and child(ren) coverage based on his full retired pay unless spousal concurrence was provided to allow a different option. 5. The SM's records contain no evidence showing he made a Reserve Component Survivor Benefit Plan (RCSBP) election. 6. The County District Court Joint Settlement Stipulation, 30 December 2013, provides that: * the applicant shall receive a fractional portion of the SM's Army benefits and/or pension by utilizing the number of months of the marriage divided by the total number of months the benefit plan is in place * the parties will cooperate with a third-party who will prepare all necessary forms and documents required 7. On 2 January 2014, the SM and the applicant divorced. The County District Court Decree of Dissolution of Marriage provides that the terms and provisions of the County District Court Joint Settlement Stipulation are fair and equitable and all provisions are made a part of the Decree. 8. Headquarters, 88th Regional Support Command, Orders 14-056-00018, 25 February 2014, reassigned the SM to the Retired Reserve in the rank/grade of staff sergeant/E-6 effective 26 May 2014. 9. The County District Court Order Granting Petitioner's Application for Order Nunc Pro Tunc (now for then; retroactive correction) and Motion for Entry of Military Retired Pay Division Order, 3 November 2015, provides that: * the SM and his counsel were required by the stipulation to cooperate with his former spouse (applicant) and prepare the Military Retired Pay Division Order * neither the SM nor his counsel have cooperated to complete the preparation of such documents * the former spouse (applicant) is awarded former spouse coverage as the beneficiary of the SM's SBP 10. The SM's records contain no evidence indicating he applied for or received retired pay under any provision of law. 11. On 29 April 2021, the SM died. The SM's death certificate shows: * his age as 55 years * his marital status as divorced 12. On 26 July 2021, HRC denied the SM's former spouse's request for an SBP annuity based on the military service of her former spouse. The Chief, Gray Area Retirements Branch, further explained that there is no provision in the law whereby a divorced former spouse may be granted a survivor benefit annuity. There is no provision in the recently enacted "former spouse" legislation that would allow an annuity to be paid to a former spouse to provide an annuity in event of the SM's death unless both parties voluntarily enact the agreement within 1 year of the divorce decree. According to the divorce decree, she was not awarded former spouse coverage, as a result the application is denied. She may appeal this decision by petitioning the Army Board of Corrections for Military Records. 13. SBP elections are made by category, not by name. Options include "Spouse Only," "Spouse and Children," "Former Spouse," "Children Only," "Natural Interest Person," "No Beneficiary," and "Decline." 14. "Gray area" retirees are Reserve Component 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 begin 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 assigned to the Retired Reserve. BOARD DISCUSSION: 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 regulation. 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 the former service member submitted a written and timely request to DFAS to elect Reserve Component SBP coverage with concurrence from his former spouse. Such relief should result in the payment of SBP premiums annuities for his former spouse, as directed in the divorce decree. 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 the applicant properly elected the Reserve Component Survivor Benefit Plan (RCSBP), with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the payment of SBP annuities to the former spouse. 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. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those members who had qualified for Reserve retirement but were not yet age 60 (and able to participate in the SBP) 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 the annuity until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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. The member cannot cancel SBP participation or change options he/she had in the 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. 2. 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. 3. 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 member is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001326 1 1