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LAW REVIEW 1099
Law Review 1008 Reconsidered
By William S. Aramony[1] and Samuel F.
Wright
5.0—Military Service and
Family Obligations
Q: I am concerned about your Law Review 1008
(February 2010). Like the officer who
wrote to you then, I am a Coast Guard Reserve officer. I was commissioned an Ensign in 1982, and I
received my Notice of Eligibility (NOE) in 2002, after having achieved 20 “good
years” for Reserve Component (RC) retirement purposes.
When I received the NOE in
2002, I was not married and had never been married, and I had no children. I chose not to participate in the RC Survivor
Benefit Plan (RCSBP) at the time, because I had no obvious beneficiary for
RCSBP benefits after my death.
I met the love of my life
in 2005 and we got married in 2006. I notified
the Coast Guard of the marriage during my first drill weekend after the
wedding. I asked the personnel officer
to give me all the forms that I needed to complete to inform the Coast Guard of
my recent marriage, and he gave me several forms to complete. I completed all those forms and returned them
to the personnel officer, and then I asked again if there were any other forms
that I needed to complete. The personnel
officer assured me that I had completed all the necessary forms.
In late 2009, I learned
that an RC member who had no spouse upon receiving the NOE but who later
married was eligible to sign up for the RCSBP after the marriage. I tried to enroll in the RCSBP and to select
my wife as the beneficiary. The Coast
Guard told me that I was too late—that I had missed out on the opportunity to
enroll in the RCSBP because I did not enroll within one year after the
marriage.
I think that it is
fundamentally unfair to punish me, and my wife, for the personnel officer’s
negligence and ignorance. I asked him
twice if there were any other forms that I needed to complete on account of my
marriage, and he assured me that I had completed all the necessary forms.
Applying what you wrote in
Law Review 1008 to my situation, it seems that the Coast Guard was correct when
it said that I had lost out by letting the year go by, after my marriage,
before trying to enroll in the RCSBP.
This just is not fair. Please
reconsider.
A: Pursuant
to your request, I (Samuel F. Wright) have reconsidered. I also consulted with William S. Aramony, an
attorney who represents people on such matters, and he and I collaborated on
this article.
While we found no specific
regulation or directive on point, we reread the statute as it may apply to your
situation. The law governing the RCSBP
provides, in pertinent part, as follows:
“A married person who is eligible to provide a reserve-component annuity
may not without the concurrence of the person’s spouse elect—(i) not to
participate in the Plan; (ii) to designate under subsection (e)(2) the
effective date for commencement of annuity payments under the Plan in the event
that the member dies before becoming 60 years of age to be the 60th
anniversary of the member’s birth (rather than the day after the date of the
member’s death); (iii) to provide an annuity for the person’s spouse at less
than the maximum level; or (iv) to provide an annuity for a dependent child but
not for the person’s spouse.” 10 U.S.C.
1448(a)(3)(B). Congress added this
provision in 2001. We noticed that the
law reads “eligible to provide,” not “eligible to receive.”
A married service member may
provide a RCSBP when vested in retirement at 20-years upon receiving the Notice
of Eligibility (NOE). If unmarried at
the time of the NOE and later marrying after 2001, then the service member may
elect a RCSBP. Other RCSBP designations
may occur at other times, such as to former spouses, but that is beyond the
scope of this answer.
Thus, in 2002 when you
received your NOE if you had been married, then a default election would have
taken place to provide full RCSBP coverage with an annuity to your spouse, due
the day after your death, unless you provided within 90-days of receiving your
NOE your spouse’s written concurrence to decline coverage or elect less than
full coverage. E.g., see Coast Guard
Reserve Component Survivor Beneficiary Guide and CG Form 11221 (http://www.uscg.mil/forms/cg/cg_11221.pdf)
In other words, inaction by
the service member at the time of the NOE results in full RCSPB coverage. A question in your situation is whether
inaction by the service member who later marries also causes the default of
full RCSPB coverage or in equity should it cause the default?
Coast Guard and other RCSBP
directives we read are not clear on this issue.
They provide that the member “may elect” the new spouse for RCSBP within
one year of marriage. It is not clear
that the member is subject to a default election. We also recognize differing viewpoints
contrary to your (and our) view.
For example, the Coast Guard
may argue that it did not have an opportunity to make such a default election
on your behalf, because you did not tell them of the marriage using the
appropriate RCSBP form, e.g., CG-11221.
Your response is that you informed the Coast Guard of the marriage in
other contexts, such as by enrolling her in DEERS (Defense Enrollment
Eligibility Reporting System) and obtaining a dependent id card for her. Additionally, several decisions by Boards
for Correction of Military Records, with some exceptions, are that the requirement
to elect SBP or RCSBP should be strictly enforced and that a failure to elect
coverage (absent the default coverage) means no coverage.
We also acknowledge that
policy rationales underlie the myriad amendments and protections of spouses and
former spouses in RCSBP statutes. The
default election did not exist until Congress wrote it in 2001. These protections of spouses and former
spouses are written into the statute for a reason. Statutes may seem black and white until you
delve into the intersecting provisions and promulgating directives and
regulations, legislative intent, and policies.
The service member may seem to have an uphill battle particularly in the
“good order and discipline” military where military views on personnel matters
receive deference by courts.
However, we continue to
reread the text of a statute which may not make distinctions between a person
married at the time of the NOE and one later married. And we are cognizant of the potential
inequity and injustice to the spouse who has no responsibility or fault for the
failure to elect.
A forum for you and your wife is the Coast
Guard Board for the Correction of Military Records (CGBCMR). The CGBCMR has authority to recommend
corrections of inequities and injustice in military records. To petition the CGBCMR, a member needs to submit,
within three years, the form DD 149.
The member also should provide documentary evidence and reasons in
support of the request for relief. Court is another option to make legal
arguments or to review a CGBCMR decision.
Timely petitioning CGBCMR, however, does not stop the court statute of
limitations for de novo review from running and the court’s standards of
review are limited.
Let us reemphasize to readers
the advice Captain Wright stated in Law Review 1008. In both your military and civilian careers,
it is important that you understand the laws and regulations that apply and
that you take timely action to protect your legal rights. You cannot depend upon a military or civilian
personnel office to understand all these laws and regulations, to explain them
to you, and to protect your legal rights.
You should consider consulting, and if necessary retaining, an attorney
who is familiar with this specialized area of law. Your situation is an example of personnel not
knowing to advise you of the pitfalls and requirements of electing a newly
married spouse for RCSBP coverage.
[1]
William S. Aramony (703-299-8496) is a Captain in the Navy Reserve Judge
Advocate General’s Corps and a member of ROA.
He represents military personnel and federal employees in employment
matters. His military affiliation and
practice areas are shown for information purposes. The views expressed in this article are those
of the authors and should not be attributed to the Department of the Navy, the
Department of Defense, or the U.S. Government.
This article is for educational purposes and should not be considered to
be legal advice or relied upon to make decisions. Each matter is different and each person is
different and legal answers may vary according to the circumstances of each
matter. The factual scenario presented
in this article is fictitious and does not relate to any one specific
individual.
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