IN THE CASE OF:
BOARD DATE: 20 January 2011
DOCKET NUMBER: AR20100016227
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, reinstatement of his Survivor Benefit Plan (SBP) coverage election.
2. He states, in effect, he didn't realize he lost his SBP coverage when he went from retired Army to the Department of Veterans Affairs. It should have been brought to his attention when it was stopped. His paperwork for SBP coverage was presented at Fort Richardson, AK, in 1981.
3. He provides a DA Form 4240 (Data for Payment of Retired Army Personnel).
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he enlisted in the Regular Army on 18 September 1962. He served continuously on active duty through several reenlistments.
2. He provided a DA Form 4240 signed and witnessed on 5 September 1978 that shows he was married and he elected coverage for "dependent children only" in Part IV (SBP Election). Item 17d (Name) listed his children's names and their dates of birth as 25 February 1965, 13 May 1967, 18 July 1969, and 2 November 1972. Part IX (SBP Certificates) noted his spouse was not available for counseling and was to be informed by letter, dated 8 September 1978.
3. Part X (Information on SBP) stated a dependent child must be unmarried and meet one of the following conditions:
a. be under 18 years of age;
b. be between ages 18 and 22 and pursuing a full-time course of study and/or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institute; or
c. be incapable of self-support because of mental or physical incapacity which existed before the 18th birthday or was incurred before age 22 while pursuing a full-time course of study of training.
4. Part XA (Monthly Cost and Amount of Survivor Annuity), item e, specifies that when all children cease to be eligible for an annuity, the additional cost for child coverage shall stop. The reduction in cost is effective the first day of the month following that in which the last child ceased to be eligible for an annuity.
5. In a letter, dated 8 September 1978, his spouse was advised of his SBP election coverage for "dependent children only."
6. He was honorably retired on 2 November 1979 for temporary disability and placed on the Temporary Disability Retired List (TDRL). He was permanently retired on 31 December 1980.
7. A staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay, Cleveland, OH, verified the applicant does not have any SBP premiums being deducted from his retired pay as his last child aged out.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected SBP coverage for "dependent children only" on 5 September 1978. On 8 September 1978, his spouse was notified of his election. At the time of the SBP election, his children were eligible for SBP coverage. Based on their dates of birth, each child ceased to be eligible for an annuity upon reaching either their 18th or 22nd birthday on the respective dates of 25 February 1983 or 1987, 13 May 1985 or 1989, 18 July 1987 or 1991, and 2 November 1990 or 1994, and the SBP coverage and cost stopped being collected from his retired pay.
2. In accordance with SBP guidance, SBP elections in effect at retirement are considered permanent and irrevocable. Nevertheless, SBP costs for child coverage stop when there is no longer an eligible child beneficiary, as in his case.
Therefore, there is no legal basis to grant him relief.
3. If he gained a new child, he needs to provide a birth certificate and/or adoption documents. He may write to DFAS, U.S. Military Retirement Pay, P.O. Box 7130, London, KY 40742-7130.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ _____X__ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
____________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) AR20100016227
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ABCMR Record of Proceedings (cont) AR20100016227
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