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 applicants 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 childs 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
individuals 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 applicants 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
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