IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004460 


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 that his Survivor Benefit Plan (SBP) election be changed from "spouse only" coverage to "spouse and child" coverage based on full gross pay.

2.  The applicant states he enrolled in the SBP for "spouse only" coverage based on full gross pay during the 2005 open enrollment period.  He adds that he recently adopted a son and would like to add him to his SBP.

3.  The applicant provides, in support of his application, a DD Form 2656 (Data for Payment of Retired Personnel), dated 14 April 2000; DD Form 2656-9 (Survivor Benefit Plan (SBP) and Army Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election), dated 20 October 2005; Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, letter, undated; Superior Court of Washington for Pierce County, Decree of Adoption, dated 9 January 2009; and State of Washington, Department of Health, Certificate of Live Birth, issued 2 February 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in an enlisted status on active duty in the Regular Army; attained the grade of sergeant first class/pay grade E-7; was honorably retired on 31 July 2000 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 12, based on sufficient service for retirement; and transferred to the USAR Control Group (Retired).  At the time he had completed 17 years and 2 months of net active service; 4 years of total prior active service; and 1 year, 6 months, and 24 days of total prior inactive service.

2.  In support of his application, the applicant provides the following documents.

	a.  A DD Form 2656, dated 14 April 2000, that shows, at that time, the applicant was married to C______ M. C_______; had a 19-year old dependent daughter; and he elected not to participate in the SBP.

   b.  A DD Form 2656-9, dated 20 October 2005, that shows the applicant was married to C______ M. C_______; had no dependent children; elected "spouse only" coverage based on full gross pay; and requested enrollment during the 2005 SBP Open Season enrollment period.

   c.  A DFAS, Retired and Annuity Pay, letter, undated, that shows the applicant's open enrollment application for SBP "spouse only" coverage based on full gross pay was granted effective 1 November 2005.  This document also shows the applicant incurred an Open Enrollment Buy-In Premium in the amount of $8,832.03.

   d.  Superior Court of Washington for Pierce County, Decree of Adoption, dated 9 January 2009, and State of Washington, Department of Health, Certificate of Live Birth, issued 2 February 2009, that show, in pertinent part, the Court granted the petition of the applicant and his spouse to adopt R___ A. C_______, whose date of birth is 10 November 2002.

3.  In connection with the processing of this case, the Army SBP Program Manager, Retirement Services Office, Army G-1, was asked why the Defense Finance and Accounting Service (DFAS) could not administratively add the child to the applicant's SBP.  The Army SBP Program Manager stated that when the applicant listed an eligible child (i.e., his daughter) on his DD Form 2656, he closed the category for that child and any future child.  He would have to prove that the child was either married or not a full time student at his retirement and he erroneously listed the child.  In that case, the applicant's records could be corrected to show that the applicant did not have an eligible child at retirement.  However, if the child was eligible, the applicant's records would have to be corrected to show he elected SBP child coverage at the time of his retirement.

4.  On 14 August 2009, the applicant was contacted to confirm the dependency status of his daughter on the date of his retirement.  On 17 August 2009, the 


applicant stated that when he filled out the SBP paperwork in April 2000 his daughter was still in school and therefore, still a dependent.  However, his daughter graduated in June 2000 and she was no longer an eligible dependent when he actually retired from the U.S. Army on 31 July 2000.

5.  Title 10, U.S. Code, chapter 73, provides the basic statutory provisions of SBP law.  This document provides that the SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents). 

6.  Title 10, U.S. Code, chapter 73, also provides that child coverage may be elected with or without spouse (or former spouse) coverage and that children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22, if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student); however, marriage at any age will terminate a child's eligibility.

7.  Title 10, U.S. Code, section 1448, further provides that a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child [emphasis added] may elect to participate in the Plan.  Such an election must be written, signed by the 
person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SBP election should be changed from "spouse only" coverage to "spouse and child" coverage based on full gross pay because he and his wife adopted a son on 9 January 2009.

2.  The evidence of record shows the applicant was married and that he had no dependent child(ren) on the date of his retirement.  Records also show the applicant elected not to participate in the SBP at that time, in effect, declining enrollment in the SBP (spouse coverage).  Therefore, it would be appropriate to correct the applicant's DD Form 2656, dated 14 April 2000, to show he had no dependent children as of the date of his retirement on 31 July 2000.

3.  The open season is an opportunity for an eligible service member to elect or increase SBP coverage.  Enrollment may be in any category (i.e., spouse, former 


spouse, spouse and child, former spouse and child, child only, or natural person with insurable interest for the first time).  

4.  Records show the DFAS approved the applicant's open enrollment application for SBP "spouse only" coverage based on full gross pay effective 1 November 2005.  At the time, the applicant did not have any eligible dependent child(ren).

5.  Title 10, U.S. Code, chapter 73, in pertinent part, provides that the SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents).  Records show the petition of the applicant and his spouse to adopt a minor son was granted by the Court on 9 January 2009.  Therefore, it would be appropriate to correct the applicant's records to show he elected to add child(ren) coverage within one year of adopting his son.

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 applicant be corrected by:

   a.  showing he had no dependent children on the date of his retirement by deleting information pertaining to his daughter (Jennifer L. C______) from Item 25 (Dependent Children) of his DD Form 2656, dated 14 April 2002;

   b.  showing the applicant elected to add child(ren) Survivor Benefit Plan coverage within one year of adopting his son; and
   
   c.  based upon this correction, the Defense Finance Accounting Service shall be notified to conduct a review of the applicant's SBP account and advise him of 

the new monthly premium, along with any collections due based on the effective date of this correction.



      _________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)                                         AR20090004460



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ABCMR Record of Proceedings (cont)                                         AR20090004460



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