RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02340 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to allow him to withdraw from the Survivor Benefit Plan (SBP). ________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his retirement, he elected child only coverage for his disabled child. His daughter requires around the clock care and is receiving benefits from Medicaid. He set up a Special Needs Trust for his daughter assuming the SBP payments could be deposited into the Trust without having an impact on her Medicaid eligibility. However, the Defense Finance and Accounting Service (DFAS) informed him that SBP payments cannot be made to a Trust. The SBP payments would exceed the income requirement for his daughter to continue to receive assistance from State and Federal agencies. In support of his appeal, the applicant provides an expanded statement and a DD Form 2656, Data for Payment of Retired Personnel. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former service member who retired on 1 Aug 01. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibit B. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends granting the requested relief in the interest of justice. At the time of his 1 Aug 01 retirement, the applicant elected child only SBP coverage based on a full level of retired pay. The applicant properly reported his daughter as being incapable of self-support. The laws governing SBP allow life-time eligibility for a child, who is incapable of self-support, if the disability occurs prior to the child reaching age 18. In addition if the service member elected child coverage in conjunction with an election for spouse, or elects child only coverage, the SBP annuity may be paid to the child’s conservator or trustee, but cannot be paid to a special needs trust. Furthermore, the Social Security Administration (SSA) and other Federal and State benefits for the handicapped do not exempt SBP payments in determining eligibility. SBP child coverage is irrevocable and cannot be terminated as long as there is an eligible beneficiary. Furthermore, an individual’s eligibility to receive benefits from one government agency may be affected by their ability to receive benefits from another government agency. Unfortunately, there is currently no option in the laws controlling SBP to terminate coverage for an incapacitated child except under the disenrollment period. The Office of the Assistant Secretary of Defense (OASD) Joint SBP board has discussed the integration and negative impact of a disabled child receiving SBP, who are entitled to Federal and State disability benefits. The Services' representatives and OASD support legislative changes that would eliminate the integration, or exempt SBP payments from any means test. However, there have not yet been any changes that would provide such relief. A complete copy of the AFPC/DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Jul 13 for review and comment within 30 days (Exhibit C). As of this date, no response has been received by this office. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After thoroughly reviewing the documentation submitted with this appeal, and taking into consideration the opinion and recommendation of Air Force office of primary responsibility, we find that it would be in the interest of justice to recommend corrective action. Therefore, we recommend the applicant’s records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 22 Jun 01, he declined to elect coverage under the Survivor Benefit Plan, and his spouse concurred in his decision. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02340 in Executive Session on 25 Mar 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 May 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 1 Jul 13. Exhibit C. Letter, SAF/MRBR, dated 24 Jul 13. Panel Chair AFBCMR BC-2013-02340 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code it is directed that: The pertinent military records of the Department of the Air Force relating to , , be corrected to show that on 22 June 2001, he declined to elect coverage under the Survivor Benefit Plan, and his spouse concurred in his decision. Director Air Force Review Boards Agency