IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007370 APPLICANT REQUESTS: in effect, correction of her former husband's Reserve Component Survivor Benefit Plan (RCSBP) to show she made a deemed election for former spouse coverage within 1 year of their divorce. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), with attorney letter, 20 April 2022 * State Supreme Court Separation/Opting Out Agreement, 23 July 2013 * State Supreme Court Judgment of Divorce, 19 August 2013 * DD Form 2656-10 (SBP Former Spouse Request for Deemed Election), 16 August 2021 * State Supreme Court Domestic Relations Order, 16 February 2022 * Attorney's Letter to the Defense Finance and Accounting Service (DFAS), 28 February 2022 * two DFAS Letters, 29 March 2022 FACTS: 1. The applicant, the former spouse of a retired Army National Guard service member (SM), states: a. She and her former husband were married on 12 June 1993. They divorced on 26 August 2013. She filed for survivor benefits in 2022 as the former spouse, but was denied because she did not file within 1 year of the judgment of divorce on 19 August 2013. b. She was granted survivor benefits for her former husband's military retirement account. She was never advised that there was a 1-year deadline for the former spouse to file for survivor benefits. This deadline is not widely known to civilians. She did not learn of the deadline until nearly 9 years later when she tried to file a Qualified Domestic Relations Order against her former husband's military retired pay account and file for former spouse survivor benefits. 2. The State Certificate of Marriage Registration, 17 June 1993, shows the marriage of the applicant, with a birthdate in , and the SM on 12 June 1993. 3. The State Supreme Court Separation/Opting Out Agreement, 23 July 2013, states: With regard to the Husband's [SM's] Military Pension, the parties agree that the Wife [Applicant] shall have her marital share of the Husband's military pension pursuant to a shared interest order. The Wife shall receive her portion of the benefit as follows: The Wife shall receive an amount equal to 50% of the husband's disposable retirement pay under the plan as of his commencement date….The parties further agree that the Wife shall be treated as the Husband's irrevocable beneficiary under the Survivorship [sic] Benefit Plan. The Husband shall make the necessary benefit election in a timely manner. 4. The State Supreme Court Judgment of Divorce, 19 August 2013, ordered, adjudged and decreed: …that the bonds of matrimony heretofore existing between the [Applicant] and the [SM] be and they are hereby dissolved by reason of the Six-Month Irretrievable Breakdown of the Marriage… …that the parties shall comply with the terms and conditions of the Separation/Opting Out Agreement entered into on July 23, 2013, as those terms of the same specifically were set forth herein… …that the terms and provision of the parties' Separation/Opting Out Agreement dated July 23, 2013, were fair and reasonable when made and are not now unconscionable, and shall be incorporated into the Judgment of Divorce, and shall not merge therein but shall survive the same to the extent permitted by law. The parties are hereby directed to comply with all the legally enforceable terms and conditions of the Separation/Opting Out Agreement dated July 23, 2013, as if such terms and conditions were set forth in their entirety herein… 5. The SM was serving in the Army National Guard when he received his Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), 5 May 2017. 6. The SM's DD Form 2656-5 (RCSBP Election Certificate), 4 June 2017, shows in: * Section II (Marital/Dependency Status), item 7 (Are You Married?) – he marked "NO" * Section IV (Coverage) – he elected Option C (Immediate Annuity) for "Child(ren) Only" at Full Retired Pay (note: there was an option to elect "Former Spouse" and Former Spouse and Child(ren)) 7. Joint Force Headquarters Orders 262-1026, 19 September 2019, reassigned the SM to the Retired Reserve effective 5 May 2019. 8. The applicant's marriage certificate is not in evidence for review (note: the applicant remarried before her 55th birthday). 9. The applicant's DD Form 2656-10 (SBP Former Spouse Request for Deemed Election), 16 August 2021, shows she requested to deem an election for former spouse RCSBP coverage. The form disclosed that failure to provide the requested information within 1 year of the date of the court order which requires former spouse SBP coverage will result in denial of former spouse RCSBP coverage. * item 6b (Current Name) * item 9 (Date of Birth) (age 50) * item 12c (Are You Currently Married?) – "Yes" * item 12d (If Yes, Date of Current Marriage) – 15 July 2017 (age 46) 10. The State Supreme Court Domestic Relations Order, 8 February 2022, pages 1-4, ordered: …that the Plan Administrator [DFAS] issue separate checks to the Participant [SM] and the Alternate Payee [Applicant] for their respective interests in the Plan at the time the benefits become payable… …that the Participant is directed to designate the Alternate Payee as beneficiary under the Survivorship [sic] Benefit Plan which shall provide the Alternate Payee with the same benefits she would have received before Participant's death… …that in the event there is a conflict between this Order and the terms of the Plan, the provisions of the Plan shall control… 11. The applicant's attorney's letter to DFAS, 28 February 2022, shows submission of her application for the applicant's portion of the SM's military pension/retirement account. 12. The DFAS Garnishment Law Directorate letter, 29 March 2022, notified the applicant's attorney that the applicant's application for payment of a portion of the retired/retainer pay of the SM cannot be approved for the following reasons: a. The final court order of divorce, separation, or annulment must be certified by the Clerk of the Court. b. A completed DD Form 2293 (Application for Former Spouse Payments from Retired Pay) must be submitted. c. The court order provides for a division of retired/retainer pay by means of a formula wherein the numerator (length of marriage or Reserve points earned during the marriage) or percentage multiplier is not specified. A certified copy of a clarifying order awarding either a fixed amount or a percentage of the SM's retired/retainer pay, or which provides a formula wherein the only missing element is the denominator (SM's years of service or total points earned by a Reservist) must be obtained. 13. A second DFAS Garnishment Law Directorate letter, 29 March 2022, notified the applicant's attorney that the applicant's request for a deemed election cannot be approved. The court order submitted must be received within 1 year of being issued by the court. Therefore, DFAS is unable to honor the request since the date DFAS received the deemed election is more than 1 year after the court order was filed. 14. As of this date, the SM has not been placed on the Retired List, as he has not reached age 60. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The former service member was obligated via the divorce decree to elect former spouse SBP coverage. He did not, but nor did the applicant deem an election within one year of the divorce. The former service member instead affirmatively elected child only coverage. The applicant, by her own admission, remarried in 2017 prior to age 55. This terminated her eligibility for former spouse SBP coverage. There is no evidence that she has since divorced her current spouse. As she is no longer an eligible beneficiary and additionally did not file within the requisite one-year window, the Board determined the evidence does not support the relief she seeks. 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: 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. 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 who qualified for Reserve retirement but were not yet age 60 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 it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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 the RCSBP. RCSBP coverage automatically converts to SBP coverage upon retirement. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 8 September 1982, established the SBP for former military spouses. This law also decreed that State courts could treat military retired pay as community property in divorce cases if they so choose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the retired SM by virtue of the retired SM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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. 4. 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 SM is received within 1 year of the date of the court order or filing involved. 5. Department of Defense Instruction 1332.42 (SBP) establishes policy, assigns responsibilities, and provides procedures for administration of the SBP Program, RCSBP Program, Special Survivor Indemnity Allowance, and SBP Advisory Group. Paragraph 10.2 (Annuities Payable to Survivors of Retirees) states the Secretary concerned will pay an annuity to an eligible survivor who was an eligible dependent of the covered participant or insurable interest beneficiary, commencing on the day immediately following the death of a covered participate, or if the covered participant elected an RCSBP deferred annuity, on the day following the death of the member or the day the member would have attained age 60, whichever is later. a. Duration of Annuity. A spouse or former spouse who is an annuitant will continue to receive an annuity while alive, except, in the event of remarriage before reaching age 55. b. Remarriage before Age 55. In the event a spouse or former spouse annuitant remarries before age 55 and if there are eligible dependent children, the annuity will be divided equally among the eligible dependent children; if there are no eligible children, the annuity is suspended. However, the annuity may resume if the remarriage is terminated by death, annulment, or divorce. The effective date for either the suspension or resumption of the annuity is the first day of the month in which the event occurs. 6. Department of Defense Financial Management Regulation, Volume 7B (Military Pay Policy and Procedures – Retired Pay), provides for the entitlement to military retired pay. Chapter 46 (SBP – Annuities), paragraph 4602c (Spouse and Child or Former Spouse and Child), states the annuity is paid to the spouse or former spouse as long as eligibility exists. If the surviving spouse or former spouse dies, remarries before age 55, or otherwise loses eligibility, the annuity is paid to the child annuitant(s). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007370 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1