IN THE CASE OF:
BOARD DATE: 17 November 2009
DOCKET NUMBER: AR20090004332
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, correction of his records to show that he elected to participate in the Survivor Benefit Plan (SBP) for spouse only coverage.
2. The applicant states he believes that having his son as the beneficiary of his SBP creates an injustice to his long-term care and support. He states that he originally enrolled his son in the SBP because at the time it was the best option to provide for his support after he and his wife died. He states that he has since learned about the availability of Supplemental Security Income (SSI) as a means to provide for his son after death. He states that his son is currently receiving SSI and that he has learned that when he dies an SBP annuity would cancel his sons eligibility for SSI. He states that SSI provides a greater level of care than that which is provided by the SBP.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active duty); a copy of his sons School Eligibility Decision; a statement from his sons physician, dated 19 May 2006; and a copy of his sons Social Security Administration SSI Notice of Award.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of
Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army (RA) on 4 December 1980 and he remained on active duty through a series of reenlistments. He was promoted through the ranks to the rank/grade of sergeant first class (SFC)/E-7.
3. The applicant retired from the RA on 31 December 2000.
4. Prior to his retirement, on 28 November 2000, the applicant elected to participate in the SBP with coverage for spouse and children, full base amount. He indicated that he had two children; a daughter, age 21 and a son, age 20.
5. The Social Security Administration SSI Notice of Award that the applicant submitted, dated 27 July 2007, shows that his son is currently receiving SSI benefits from the Social Security Administration.
6. During the processing of this case an ABCMR staff analyst contacted the applicant regarding his application. The staff analyst explained to the applicant that election of SBP beneficiaries are by category only which means that he is requesting that his SBP election be changed from spouse and children to spouse only. The applicant explained to the analyst that he understood that changing his election would result in his daughter no longer being eligible for an SBP annuity upon his death. The applicant stated that he needed the SBP election changed so it would not interfere with the SSI benefits that his son is currently receiving.
7. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Election of beneficiaries is made by category only, not by name.
DISCUSSION AND CONCLUSIONS:
1. While there was no error made by the Army in this case, failure to correct the applicants records may result in an injustice to his family. The supporting documents show that his son is currently receiving SSI benefits for his disability and in the event of the applicants death, his SSI benefits would be cancelled.
3. In view of the foregoing, it would now be interest of justice to correct the applicants records as recommended below.
BOARD VOTE:
___X____ ___X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that prior to his retirement he elected to participate in the SBP for spouse only coverage and adjusting his SBP premiums accordingly.
___________X____________
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20090004332
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ABCMR Record of Proceedings (cont) AR20090004332
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