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                                                                                                                             FILED
                            Ifu tllt @niteD 5tsttg [,ourt                                   of fpDprul @lsimg
                                                                               No. l3-16C                               [4AY 2   2014

                                                                       (Filed: May 2,2014)
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                                                                                                                      'Hii.3oo.'31?fit
                                                                                       Former spouse's claim for benefits
CHARLOTTE TAYLOR-                                                                      under the Armed Forces Reserve
TILLOTSON,                                                                             Component Survivor Benefit Plan; 10
                                                                                       U.S.C. $ 1aa8(a)(2)(B); qualifuing
                                                  Plaintiff,                           reserve service; effect of divorce
                                                                                       prior to death ofreserve component
                                                                                       service member

UNITED STATES,

                                                  Defendant.

1.,t    *   *** *** *:t*,|(*** * ** * *+* *:*,t:***                   * *,t   *+

                      Charlotte Taylor-Tillotson, pro se, urd on behalf of Lawrence Joseph Tillotson
(deceased), Lake Worth, Florida.

        Michael D. Snyder, Trial Attomey, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Stuart F. Delery, Assistant Attomey General, Civil Division, Robe( E. Kirschman, Jr.,
Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Major Wayne
H. Williams, United States Army Litigation Division, Fort Belvoir, Virginia.


                                                                    OPINION AND ORDER
LETTOW, Judge.

        In this military benefits case, plaintiff, Ms. Charlotte Taylor-Tillotson, seeks review ofa
military board decision denying her survivor benefits after the death of Lawrence Joseph
Tillotson. Ms. Taylor-Tillotson claims that she is entitled to an annuity under the Reserve
Component Survivor Benefit Plan C'RCSBP). Compl. lffl 50-51.' The RCSBP is an insurance-
style program administered by the Department of Defense under the authority of 10 U.S.C.
$ 1448, allowing an eligible reservist to provide an annuity to a surviving spouse. Eligibility for
this program includes a minimum number ofyears ofqualifying service on the part ofthe service
member and eligible marital status between the service member and the person seeking payment.



       'She also seeks Dependency and Indemnity Compensation (.'DIC'), provided by the
Department of Veterans Affairs under 38 U.S.C. $ 1310(a). Compl. tTfl 50-51.
,See 10U.S.C. $ l+a8(a)(2)(B).' The Army Board for Correction of Military Records ("Army
Board") denied her petition for a RCSBP annuity, stating that (1) she was not eligible under
the program because she and Mr. Tillotson were not married at the time of his death and
(2) Mr. Tillotson was not eligible to participate in the program because he had _not completed the
necessary years of qualifying service. AR 4-74 to -79 (Army Board decision).r Pending before
the court are defendant's Motion to Dismiss, or in the Altemative, Motion for Judgment on the
Administrative Record ("Def.'s Mot."), ECF No.27, and plaintiff s Cross-Motion for Judgment
on the Administrative Record ("P1.'s Cross-Mot."), ECF No. 36.




          'For reserve-component participants, Section 1448 provides in part:

          (a) General rules for participation in the Plan.
               (l) Name ofPlan; eligible participants. - program established
                                                        - The
          by this subchapter shall be known as the Survivor Benefit Plan. The
          following persons are eligible to participate in the Plan:
                  (A) Persons entitled to retired pay.
                  (B) Persons who would be eligible for reserve-component
                    retired pay but for the fact that they are under 60 years ofage.
               (2) Participants in the Plan.      The Plan applies to the following persons,
                                           -
          who shall be participants in the Plan:
                   (A) Standard annuity participants. . . .
                   (B) Reserve-component annuity participants.          A person who (i) is
                                                                 -
          eligible to participate in the Plan under paragraph (l)(B), and (ii) is manied or
          has a dependent child when he is notified under section 12731(d) ofthis title
          that he has completed the years of service required for eligibility for reserve-
          component retired pay, unless the person elects (with his spouse's concurrence,
          ifrequired under paragraph (3)) not to participate in the Plan before the end of
          the 90-day period beginning on the date on which he receives that notification.

          A person who elects under subparagraph (B) not to participate in the Plan remains
          eligible, upon reaching 60 years ofage and otherwise becoming entitled to retired
          pay, to participate in the Plan in accordance with eligibility under paragraph (l)(A).

10 U.S.C. $ 1aa8(a).

          3citations
                   to the administrative record refer to the record filed on April 22,2013 pursuant
to Rule 52.1(a) of the Rules of the Court of Federal Claims ("RCFC"). The record is paginated
sequentially and also divided into tabs. In citing to the administrative record, the court will first
designate the numeric tab, including an alphabetic addendum ifapplicable, followed by page
number, e.g., AR 4-74 refers to page 74, which is located in tab 4 of the record.
                                               FACTS'

        From March 17,1969 until August 1, 1983, Mr. Tillotson was a member of the Army
Reserves. AR 8l-105 to -06 (Army National Guard Retirement Points History Statement for
Lawrence Tillotson); see also AR 4-76. He then served on active duty in the Army from August
2, 1983 until December 10, 1991. AR 8D-97; see also AR 8l-105 to -06. After this service, he
was honorably discharged to care for his elderly parents. AR 4-76. On February 14, 1992,
Mr. Tillotson reentered military service as a member of the Montana Army National Guard. AR
4-76, 8l-105 to -06. He held this position until his death on May 3, 1995. AR 8I-105, l0B-442
(death certificate for Lawrence Tillotson). In total, Mr. Tillotson served 21 years, 10 months,
and 29 days, of which the final 3 years, 2 months, and 20 days were served as a member of the
Montana Army National Guard. AR 8I-105; AR 4-76.

        While in the Army Reserves, on August 28, 1977, Mr. Tillotson married Charlotte Taylor
in Montana. AR 88-93 (marriage license). Two years later, on October 24, 1979, the couple
entered into a property settlement agreement indicating marital separation. AR 10D-563 to -65
(property settlement agreement). On November 21,1979,the Montana state court dissolved the
marriage, stating that Ms. Taylor-Tillotson came before it alleging that the marriage was
inetrievably broken, and restored to Ms. Taylor-Tillotson her maiden n,ure. Decree of
Dissolution, ECF No. 16-1.) The decree states that Mr. Tillotson neither responded to
Ms. Taylor-Tillotson's Petition for Dissolution of Maniage nor appeared before the court. Id.
The decree also states that Ms. Taylor-Tillotson was in attendanc e, id.,but she disputes that she
actually appeared, stating that she was in the hospital at the time, Hr'g Tr. 7:24 to 8:5 (Dec. 3,
2013).'Intheyearsthereafter,Mr.Tillotson'smilitaryrecordsreflectthathedesignatedhimself
as being divorced. See AR 108-455 (life insurance election form (Nov. 5 1994)); AR 108-490
(progressing record (Jan. 23,1992)); AR 10C-529 (application for identification card, (Aug. 29,
 1989)). Nonetheless, he appears to have received housing allowance for a spouse for two
months in l99l. See AR 9-394 (pay information of Mr. Tillotson for Nov. 1991); AR 9-396 (pay
information of Mr. Tillotson for Dec. 1991). Ms. Taylor-Tillotson argues that notwithstanding
the divorce decree, she continued to live with him as a common law wife. See Mot. for Court to



        *The
            factual recitations that follow are drawn from the administrative record   of
proceedings before the Army Board.

        slnitially, after
                          conducting a general search, the State of Montana, Department ofPublic
Health and Human Services, and the Clerk of the District Court in Montana were unable to
locate the divorce record for Mr. Tillotson and Ms. Taylor-Tillotson, see AR l-26, AR l0,4.-441,
but the Clerk of Court was subsequently able to find the divorce decree by conducting a more
specific search, see Def .'s Mot. at l0 n.4.
         Ms. Taylor-Tillotson states that she filed suit in Montana state court to have the divorce
decree set aside, but her efforts in that respect were unsuccessful. SeeHr'g Tr.5:15 to 6:4 (Dec.
3,2013).
        6Further
                   citations to the hearing held on December 3, 2013 will omit reference to the
date.
Take Judicial Notice, ECF No. 26. Mr. Tillotson's death certificate records him as divorced.
AR l08-442.7

         On May 10,2011, six years after Mr. Tillotson's death, Ms. Taylor-Tillotson was denied
disabled widow's benefits from the Social Security Administration. See AR 1-34 to -44. She
then filed an application for Dependency and Indemnity Compensation (DIC), Death Pension
and Accrued Benefits with the Department of Veterans Affairs. AR 1-13 to -20. On this
application she wrote, "Please determine if I am entitled to benefits." AR 1- 13. She stated that
she did not know the cause oftheir marital separation and "did not live with [Mr. Tillotson] on
the day he died." AR l-15. At several places on the application form, she responded
"unknown," citing memory issues. See AR 1-14 to -15. The Department of Veterans Affairs
sought additional information from her, but when she did not provide the requested
documentation, it denied her claim in a decision dated March 8,2013. See AR l-1 to-5.
Although the agency informed her ofher right to appeal this decision, AR 1-1, no appeal appcars
to have been filed.

        On December 7,2011,Ms. Taylor-Tillotson applied for RCSBP benefrts. AR 8G-100 to
-01. Benefits were denied by the Army on the ground that Mr. Tillotson had not completed the
required 20 years of service. AR 8H-102." She appealed this decision to the Army Board, which
denied her application on October 16,2012 because (1) although Mr. Tillotson served over 20
years, he did not serve the last 6 years as a Reserve Component soldier, as required by l0 U.S.C.
$ 1273 I (a), AR 4-74 Io -79; see n/so Def.'s Mot. at 6, and (2) Mr. Tillotson was not married at
the time of his death, AR 4-79. The Board did not have the divorce decree before it; it reached
its conclusion about his marital status based upon Mr. Tillotson's militarv records and his death




       ?ln
             or around Janvry 2012, Ms. Taylor-Tillotson sought to amend the death certificate to
reflect that Mr. Tillotson was married to her at the time of his death. see AR 10A-414 (Letter
from Julie Cleveland, Montana Department of Public Health and Human Services to Taylor-
Tillotson (Jan.23,2012)). The Montana Depanment of Public Health and Human Services
required her to present a certified court order directing Montana vital Records to change the
marital status before it would change his death certificate. 1d On April 3, 2012, Ms. Taylor-
Tillotson filed suit in the United States District Court for the Sou*rem District ofFlorida, where
she was living, asking the court to issue an order to change the death certificate. See Complaint,
Taylor-Tillotson v. Montana Dep't of Public Health & Human Servs., No. 12-cv-80352-KLR
(S.D. Fla. Apr.3,2012). The court dismissed her claim for lack ofsubject matter jurisdiction.
Order Dismissing Case for Lack of Jurisdiction, Taylor-Tillotson v. Montana Dep't of Public
Health & Human Servs., Case No. 12-cv-80352-KLR (S.D. Fla. Apr. 16, 2012). An appeal to
the United States Court ofAppeals for the Eleventh Circuit was not successful. See Order,
Taylor-Tillotson v. Montana Dep't of Health & Human Servs., No. 12-13068 (l lth Cir. Oct. 12,
2012).

       8The
              A.my initially stated that Mr. Tillotson completed
                                                               14 years, 8 months, and 9 days    of
service, AR 8H-102, but this record was subsequently corrected to reflect the proper period of
service, u2.,21 years, 10 months, and 29 days, see Def.'s Mot. at 3.
certificate. See AP.4-76 to -79.' Ms. Taylor-Tillotson filed her claims in this court on January
7,2013, proceedingpro se. She seeks annuity payments under the RCSBP and compensation for
her DIC claims. Compl. fl 51. '' Along with the administrative record, the government provided
the court with the divorce decree ending the marriage of Mr. Tillotson and Ms. Taylor-Tillotson.
Def.'s Notice of Filing Administrative Record & Ex. A, ECF Nos. 16, 16-1.

         On August 20,2013, the govemment filed a motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim upon which relief may be granted, or, in the
 altemative, for judgment on the administrative record. Def.'s Mot. at l-2. Ms. Taylor-
Tillotson's response and cross-motion was filed on February 25,2014. She contends that the
Army Board's decision regarding the duration of Mr. Tillotson's military service is contrary to
 law. See Pl.'s Cross-Mot. at 6. Two hearings were conducted, one on December 3,2013 and
another on March 25,,2014. The motion and cross-motion have been fully briefed and are now
ready for disposition.' '




        'Ms. Taylor-Tillotson filed                  Army Board's decision, AR 3-61, which the
                                      a response to the
Board considered as a request for reconsideration, AR 2-60. That request was administratively
closed after Ms. Taylor-Tillotson filed her complaint in this court. AR 2-59.

        l0ln
             her complaint, Ms. Taylor-Tillotson sought an annuity under either the RCSBP,
pursuant to 10 U.S.C. $ 1aa8(a)(1)(B), or the survivor Benefit Plan, pursuant to l0 u.s.c.
$ 1aa8(a)(t)(A). Compl. fl 51. Because all the parties' filings, as well as rhe Army Board's
decision, refer exclusively to the RCSBP, the court will consider only that ground for her claim.
In all events, Ms. Taylor-Tillotson would not be eligible for an annuity under the general
Survivor Benefit Plan, which covers active duty military members, because Mr. Tillotson was
not on active duty at the time of his death. See Survivor Benefit Plan (SBP), MyArmyBenefits,
The U.S. Army official benefits website, http://myarmybenefits.us.arm)'.mil/Home/Benefit
Library/Federal_Benefits_Page/Survivor_Benefit Plan_%28 SBP %29.html (last visited Apr.
30,2014).

         llMs. Taylor-Tillotson
                                frled two motions to take judicial notice of fact and law, both of
 which the court granted. OrderofDec.2,2013,ECFNo.31. The first asked the court to take
judicial notice of 10 U.S.c. $ 10101 and two pages ofpublication entitled Reserve components
 ofthe Armed Forces, Reserve Component Categories, issued by the Office of the Assistant
 Secretary of Defense for Reserve Affairs. Pl.'s Mot. to Take Judicial Notice, ECF No. 24. The
second asked the court to take notice of Montana state law which recognizes common law
marriage. Pl.'s Mot. to Take Judicial Notice, ECF No. 26. Ms. Taylor-Tillotson also sought to
supplement the administrative record to include additional documents which were never before
the Army Board. ,See Pl's Mot. to Supplement the Administrative Record, ECF No. 17. The
corrrt denied this motion, stating that in reviewing the Army Board's decision, it cannot consider
new evidentiary materials that were not before the Board. Order ofDec. 4,2013, ECF No. 32.
                                     STANDARDS FOR DECISION

         When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC
 12(b)(l) and for failure to state a claim under RCFC 12(b)(6), the plaintiff bears the burden to
establish sufficient facts to show the court's subject matter jurisdiction over each claim, as well
as the plausibility of the claims. Montano Elec. Contractor y. United States,l14 Fed. Cl. 675,
679 (2014) (citing McAfee, Inc. v. United Stales, 111 Fed. C|.696,706 (2013), and Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 555 (2007)). All unchallenged factual allegations in the
complaint will be construed in the pleader's favor, but any disputed jurisdictional facts must be
proved by a preponderance ofthe evidence. McAfee,Il1Fed. Cl. at706 (intemal citations
omitted). While the court will construe Ms. Taylor-Tillotson's pro se pleadings liberally, this
leniency does not absolve her ofher obligation to prove jurisdiction. See Heger v. United States,
103 Fed. CL.261,263 (2012).

        The parties' cross-motions forjudgment on the administrative record under RCFC
52.1(c) are resolved by reviewing the decision ofthe Army Board to determine whether it is
arbitrary and capricious, unsupported by substantial evidence, or contrary to lavt. See Holmes v.
 United States,98 Fed. Cl. 767,780 (201l) (citing Chambers v. United States,4lT F.3d,1218,
 1227 (Fed. Cir. 2005), ar,d Godwin v. united states,338 F.3d 1374, t378 (Fed. Cir. 2003)). The
plaintiffbears the burden ofproofand persuasion in establishing the unlawfulness ofthe
agency's decision. See Gossage v. United States,91 Fed. CL 10l, 106 (2010) (citing Bannum,
Inc. v. United States,404 F.3d 1346 1357(Fed. Cir.2005)). The court must render its decision
on the record certified by the agency and may not conduct a de novo inquiry into the matter.
Holmes,98 Fed. Cl. a|779. If the court finds the record before the agency to be insufficient to
permit meaningful judicial review, the court should remand the case back to the agency for
additional investigation or consideration of additional evidence. Florida Power & Light Co. v.
Lorion,470 U.5.729,744 (1985); see also Axiom Res. Mgmt., Inc. v. United States,564 F.3d
1374, 1380 (Fed. Cir. 2009) (holding that trial court abused its discretion by too freely permitting
supplementation of the administrative record).

                                           ANALYSIS

       The govemment's motion to dismiss for lack of subject matter jurisdiction focuses on
Ms. Taylor-Tillotson's claim for dependency and indemnity compensation administered by the
Department of Veterans Affairs. The govemment's motion to dismiss for failure to state a claim
and the parties' cross-motions for judgment on the administrative record concem her claim for
RCSBP benefits.

                          A.   Dependency and Indemnity Compensation

        Dependency and Indemnity Compensation is paid by the Department of Veterans Affairs
to a veteran's surviving spouse, children, and parents if the veteran died while on active duty or
while suffering from a service-connected disability. See Shorp v. United States,580 F.3d 1234,
1236 (Fed. Cir. 2009) (citing 38 U.S.C. $ 1310(a)). The govemment argues that the courl cannot
exercise jurisdiction over Ms. Taylor-Tillotson's DIC claims because "'[t]he Secretary of
Veteran's Affairs, not [the Court of Federal Claims], initially has jurisdiction over claims for
veterans' benefits."' Def.'s Mot. at 9 (quoting Farnsworth v. United States,106 Fed. Cl. 513,
 518 (2012) (citing 38 U.S.C. $ 511(a)). Ms. Taylor-Tillotson does not respond to this argument
in her briefs. The court agrees that it lacks jurisdiction over the DIC claims. The United States
Court ofAppeals for Veterans Claims has exclusive jurisdiction to review determinations of
veteran benefits, and any appeals from the Court ofAppeals for Veterans Claims are heard by
the United States Court ofAppeals for the Federal Ciratit. See Addington v. United States,94
Fed. Cl. 779,782 (2010) (citing 38 U.S.C. $ 51 I ); see also Farnsworth. t 06 Fed. Cl. at 518- 19.
Ms. Taylor-Tillotson's claim for DIC benefits must be dismissed for lack of subject matter
jurisdiction.

                               B.   Reserve Component Survivor Benefits

        The govemment asserts that Ms. Taylor-Tillotson's claim for RCSBP annuity payments
should be dismissed for failure to state a claim because Ms. Taylor-Tillotson and Mr. Tillotson
were divorced in1979, Def.'s Mot. at 10-16, and, altematively, that at the time of his death,
Mr. Tillotson was not eligible for reserve retirement and thus could not elect to participate in the
RCSBP, id. at 16-18. The court will address both ofthese altemative contentions.

        |.   Marital stqtus.

         The RCSBP generally provides for spousal coverage, see l0 U.S.C. g laaS(a)(2)(B), and
provisions can be made to provide an annuity to a former spouse,
                                                                     ^ree 10 U.S.C. $ 1448(bX2XA).
 In contending that Ms. Taylor-Tillotson was not Mr. Tillotson's spouse at the time of his death,
Def.'s Mot. at l0 & n.4, the government relies on a divorce decree filed as an adjunct to, but not
as part of, the administrative record which was before the Army Board, see Def.'s Notice of
Filing Administrative Record & Ex. A. Ms. Taylor-Tillotson objects that the divorce decree was
"not part of the administrative record compiled by the Army Board." Pl.'s Cross-Mot. at 7
(emphasis omitted). The govemment avers that "[i]t is of no moment that the
                                                                                   [divorce] decree
was [not] before the   .  [Army  Board] for consideration, as 'it is proper to take judicial notice of
a decision from another court or agency at any stage ofthe proceedings, even if it was not
available to the lower court."' Def.'s Mot. at l0 (quoting Function Media, L.L.C. v. Google,
lnc.,708 F.3d 1310, 1316 n.4 (Fed. Cir. 2013)).

        The court concurs that it may takejudicial notice of the divorce decree in the procedural
circumstances of this case even ifthe decree was not present in the record before the Army
Board. see crowley v. McKinney,40O F.3d 965,967 (7th cir. 2005) (rakingjudicial notiie ofa
divorce decree); Taylor v. Vermont Dep't of Educ.,313 F.3d 768, 776 (2d Cir.2002) (same).
Indeed, the court may also take into account the unsuccessful judicial proceedings initiated by
Ms. Taylor-Tillotson to set aside the decree. see supra,at3n.5,4 n.7. Suchjudicial notice only
confirms the Army Board's finding of a divorce based upon Mr. Tillotson's having designated
himself as divorced in Army records as early as 1983. See AR 4-76 (ciring Mr. Tillotson's DD
Form 1966/7.

      In response, Ms. Taylor-Tillotson argues that she and Mr. Tillotson were common law
spouses. Pl.'s Cross-Mot. at 3-4. Montana state law recognizes common law marriage for
competent parties who assume a marital relationship and cohabitate. ,jee Mont. code Ann. d 40-
 l-404 (2013).'' Ms. Taylor-Tillotson points to evidence of two months of Mr. Tillotson's l99l
pay information, which include a dependency housing allowance for a spouse, as evidence that
they were living together. Pl.'s Cross-Mot. at 7.'' Because the divorce decree and common law
marriage were not considsred by the Army Board, Ms. Taylor-Tillotson requests that these
arguments be remanded to the Army Board for consideration. Id

        A remand is unnecessary in this case. Ms. Taylor-Tillotson did not present to the Army
Board any evidence and argument that she and Mr. Tillotson had a common law marriage,
Instead, Ms. Taylor-Tillotson argued to the Board, and initially claimed to the court, that she and


        I2Montana
                    Code Ann. $ 40-1-404 (2013) is captioned "Putative spouse," and provides:

                A person who has cohabited with another to whom the person is
       not legally married in the good faith beliefthat the person was married to
       that person is a putative spouse until knowledge of the fact that the person
       is not legally married terminates that status and prevents acquisition of
       further rights. A putative spouse acquires the rights conferred upon a legal
       spouse, including the right to maintenance following termination of that
       status, whether or not the maniage is prohibited, as provided in 40-1-401,
       or declared invalid, as provided in 40-l-402. Ifthere is a legal spouse or
       other putative spouses, rights acquired by a putative spouse do not
       supersede the rights ofthe legal spouse or those acquired by other putative
       spouses, but the court shall apportion property, maintenance, and support
       rights among the claimants as appropriate in the circumstances and in the
       interest ofjustice.

The immediately preceding statutory section of the Montana Code states that "[c]ommon law
marriages are not invalidated by this chapter." Mont. Code Ann $ 40-l-403 (2013); see also In
re Marriage of Swanner-Renner,209 P.3d 238, 241-42 (Mont.2009) (recognizing under
Montana law a consent to marry declared in Washington State, which does not recognize
common law marriage, that ripened into a common law maniage in Montana after the parties
moved to that state). In Swanner-Renner, the Montana Supreme Court applied the rebuttable
presumption that a man and a woman "deporting themselves as husband and wife have entered
into a landrl contract of marriage." Id. at 241 (quoting Mont. Code Ann. $ 26-l-602(30)
(2013)). The Court stated that "[t]he party seeking to establish a common law marriage in
Montana must show that the parties were competent to enter marriage; that there was assumption
ofa marital relationship by mutual consent and agreement; that they cohabited; and that they
acquired the reputation, character[,] and status of marriage in public." Id. (citing In re Marnage
of Geertz, T 55 P.2d 34, 37 (1988); Miller v. Townsend Lumber Co., 448 P.2d 148, 152 (1968).
        llThe government
                           suggests that the dependency housing allocation allotted to
Mr. Tillotson in l99l may have actually been for a daughter, who is listed in his life insurance
plan, AR 108-454, but may have mistakenly been coded as a spouse on two pay statements. ,See
Def s Mot. at 16 n.9; Def.'s Resp. to Pl.'s Cross-Mot. and Reply in Support of Def.'s Mot. to
Dismiss, and, in the Altemative, Mot. for Judgment upon the Administrative Record (.,Def.'s
Resp.") at 8, ECF No. 37. The court need not, and does not, consider that speculative possibility.
Mr. Tillotson were "continually married." Compl. 'll 18. Additionally, the contradictory
position now being taken by Ms. Taylor-Tillotson does not have significant factual support
and thus cannot be accepted as a basis to support a remand. The Army Board's decision that
Mr. Tillotson and Ms. Taylor-Tillotson were divorced was supported by the factual record before
the Board and is further supported by the recently located divorce decree.

       2. Qualifling period of reserve   service.

       As an altemate ground for decision, the govemment argues that the Army Board acted
reasonably and lawfully when it determined that Ms. Taylor-Tillotson was not eligible for
RCSBP benefits because Mr. Tillotson did not complete the minimum service requirements
necessary to qualify to participate in the program. Def.'s Mot. At l6-18. Ms. Taylor-Tillotson
responds that the Army Board wrongly interpreted the law regarding the calculation ofservice
time. Pl.'s Cross-Mot. at 4-6.

        To qualifu for an annuity under RCSBP, a service member must "be eligible for
reserve-component retired pay but for the fact that [he or she is] under 60 years of age." 10
U.S.C.$ laa8(a)(1.11B).'' To be eligible for retired pay but for the age requirement, a service
member must have completed a minimum of 20 years of qualifying service and, if completing
those years before October 5, 1994, have served th€_ last eight years ofhis qualifuing service as a
reserve component soldier. 10U.S.C. $ 12731(a).') Any service as a member of a regular




       '*Ordinarily, the service member will be notified of eligibility for RCSBP upon
completing the pertinent service requirement. In pertinent part, 10 U.S.C. $ 12731 provides:

           The Secretary concemed shall notifu each person who has completed
       the years ofservice required for eligibility for retired pay under this chapter.
       The notice shall be sent, in writing, to the person concemed within one year
       after the person completes that service. The notice shall include notice ofthe
       elections available to such person under the Survivor Benefit Plan established
       under subchapter II of chapter 73 of this title and the Supplemental Survivor
       Benefit Plan established under subchapter III ofthat chapter, and the effects
       of such elections.

l0 U.S.C. $ 12731(d). If the person who completed the requisite years of service dies before
being notified, the Army is still required to pay an annuity to the surviving spouse. See 10
u.s.c. $ 1448(0.
       l5The
            statute provides a more lenient requirement of the last six years of service for
service members who completed the minimum of 20 years after October 5, 1994 but before         April
25,2005. The statute states:

           (a) Except as provided in subsection (c), a person is entitled, upon application,
       to retired pay computed under section 12739 of this title, if the person
                                                                                -
               ( I ) has attained the eligibility age applicable under subsection (f) to
component is not permitted in the computation of the last eight years of service. 10 U.S.C
$ 12731(a)(3). The parties agee that Mr. Tillotson met the first requirement, accruing 21
years, l0 months, and 29 days of qualified service, but they differ as to whether he satisfied the
requirement to serve his last eight years in a reserve component. See Pl.'s Cross-Mot. at 6
Def.'s Resp. at 4.

        Ms. Taylor-Tillotson argues that the proper calculation ofhis reserve service should
include time he spent, from March 17,1969 until August l, 1983, in the Army Reserve. Pl.'s
Cross-Mot. at 4; Pl.'s Reply to Def.'s Resp. to Pl.'s Cross-Mot. and Reply in Support of Def.'s
Mot. to Dismiss and, in the Alternative, Mot. for Judgment upon the Administrative Record
("P1.'s Reply") at 3-4, ECF No. 38.'" In support ofher argument, she cites Army Regulation
13 5- 180. which exolains:


                The last 8 years ofqualifying service need not be the last 8 years of military
                service, nor do they have to be continuous. Examples: An individual who[]


        that person;
               (2) has performed at least 20 years of service computed under section
        12732   ofthis title;
               (3) in the case of a person who completed the service requirements
        of paragraph (2) before April25,2005, performed the last six years of
       qualifuing service while a member of any category named in section
       12'132(a)(1) of this title, but not while a member of a regular component,
       the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case
       of a person who completed the service requirements of paragraph (2) before
       October 5, 1994, the number of years of such qualifying service under this
       paragraph shall be eight; utd
              (4) is not entitled, under any other provision of law, to retired pay from
       an armed force or retainer pay as a member of the Fleet Reserve or the Fleet
       Marine Corps Reserve.

10 U.S.C. $ 12731(a) (emphasis added). The six-year standard is not applicable to Mr. Tillotson
because he completed his 2O-year minimum prior to the transitional d,ate. See AR 8l-105 to -06
(showing that he had 20 years ofservice by Feb. 13, 1994). The parties' arguments and the
Army Board's decision center around the more lenient six-year standard rather than the more
pertinent eight-year standard. The court will refer to an eight-year requirement, but the result
would be the same if a six-year requirement applied.
        16Ms.
              Taylor-Tillotson emphasized the fact that Mr. Tillotson served in three branches of
service, the Army Reserve, the Army, and the Montana Army National Guard. See Pl.'s Reply at
3; Hr'g Tr. at9:19-22. She asserts that the Army Board erred in its decision because it ignored
Mr. Tillotson's service on active duty. Pl.'s Reply at 3. This reading of the Army Board's
decision is inconect. The Board did recognize Mr. Tillotson's active duty service in its
calculations of his total qualifying service, but this service is not relevant to its calculation of
whether he satisfied the required last eight years ofreserve service. See AR 4-79; see also 10
U.S.C. S 12731(a)(3).


                                                 l0
                [s]erved 14 years as a reservist and then 6 years in the Regular Army must serve
                an additional 6 years in a [r]eserve status to qualifr for retired pay. Even though
                this person has completed 20 years of qualifying service, only 2 ofthe last 8 years
                ofsuch service met the requirement of(3) above. Thus he or she must serve an
                additional 6 years in one ofthese categories to meet the requirement ofthe last 8
                years of qualifying service. [A person who] [s]erved l3 years in the Regular
                Army, then 7 years as a reservist, followed by 4 years in the Regular Army must
                serve an additional year in a [r]eserve status to qualify for retired pay. Even
                though he or she has completed over 20 years ofqualifying service, he or she
                must serve I more year as a reservist to meet the requirement ofthe last 8 years of
                qualilying service.

Army Reg. 135- 180, 2-t(a)(]) (1987), available at www.apd.army.mil/pdffiles/r135_180.pdf
(last accessed May 2,2014)." While Ms. Taylor-Tillotson focuses on the first sentence, the
govemment points to the examples, which explain how this requirement applies to service
members who have served both in active and reserve positions. Def.'s Resp. at4-5. The first
example is almost identical to Mr. Tillotson's situation. In this example, the service member
must serve additional years in the reserve to qualifl' because the service on active duty interrupts
the reserve service. Similarly, Mr. Tillotson's service in the Regular Army between August 2,
1983 and December 10, 1991 intemrpts his service in the reserves. After active duty, he served a
little over three years in the reserves as a member of the Montana Army National Guard. During
this time, he completed his 20 years of qualifying service. Although some of the last eight years
of his qualifiing service were in the reserves, not all of them were. Ms. Taylor-Tillotson's
statement that he completed over 13 years of qualified reserve service is correct, but the question
is not the total time Mr. Tillotson served as a reserve member, rather the eight most recently
accrued years of qualified service. Because Mr. Tillotson did not complete his last eight years of
qualifuing service in a reserve component         did not qualifo for reserve retirement, and thus he
                                              ^he
also was not eligible lor RCSBP benefits.'o

                                         CONCLUSION

        For the reasons stated above, the govemment's motion to dismiss is GRANTED IN
PART. Ms. Taylor-Tillotson's claim for Dependency and Indemnity Compensation is dismissed
for lack ofsubject matter jurisdiction. In other respects, the govemment's motion forjudgment
on the administrative record is GRANTED. In ruling that Ms. Taylor-Tillotson is not eligible for
benefits under Reserve Component Survivor Benefit Plan, the Army Board acted reasonably on


        "This regulation was issued prior to the amendment of the corresponding statute, l0
U.S.C. $ 12731, to include a more lenient six-year service requirement. However, both parties
agree that the regulation's explanation regarding the last eight-year requirement is relevant to
understanding the Army's requirements for reserve service retirement. Def.'s Resp. at 4; Pl.'s
Cross-Mot. at 4.
       l8Even
               under the more lenient six-year requirement, Mr. Tillotson's service in the
reserves would not have qualified him lor retirement because he would still have failed to have
completed his last six years ofqualifying service as a reserve member.


                                                 il
the evidence of the record and in accord with applicable law. As a result, Ms. Taylor-Tillolson's
motion for judgment on the administrative record is DENIED.

       The Clerk shall enter judgment accordingly.

       No costs.

       It is so ORDERED.



                                                    Charles F. Lettow
                                                    Judge




                                               t2
