IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20110004559 


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 his military records be corrected by changing his Survivor Benefit Plan (SBP) election from spouse and children coverage to spouse only coverage.

2.  The applicant states:

	a.  he was advised by a benefits counselor at a pre-retirement seminar in 2002 to select the SBP option to include his handicapped daughter as her future was uncertain and he would forever forfeit this option if not selected upon his retirement.  The advice he received seemed logical at the time and he elected spouse and children coverage only to recently learn his choice would negatively impact his daughter's well-being and her future benefits.

	b.  he chose the spouse/children SBP option based on the best information he had at the time.  His daughter has been handicapped (blind, mental retardation, non-ambulatory, seizure disorder) since 6 months old after what doctors at the Mayo Clinic believe was the result of a bite from a disease-carrying mosquito while they were stationed at Fort Stewart, GA in 1978.  His daughter lived at home until she was 22 years old.  Subsequently, they found a local group home specifically built for individuals like his daughter and she lived there until the home's management decided that her medical needs were beyond the capability of the home.  They were forced to move his daughter 180 miles away to another group home.  His wife also moved to oversee her care.  They found the care lacking in this home and decided to move her again.  

	c.  at this time, a new intermediate care facility run by the city of Virginia Beach was accepting clients and they were fortunate their daughter was accepted into this facility.  She has been in this facility for 3 years and is well-cared for and is in a very active program.  

	d.  recently they decided to set up a trust for their daughter to be used to provide for her beyond her SSI [Social Security Income] and Medicaid benefits.  They met with the Virginia Beach Community Trust on 21 February 2011 and during the meeting he mentioned that his daughter would have SBP benefits.  The intake person advised him that if his daughter received SBP benefits, even through a trust, she would become ineligible for the benefits of SSI and Medicaid that she is now receiving and she would be forced to move from the facility that she currently resides in even though the SBP benefits would be far less than the combined benefits of SSI and Medicaid.  Since his daughter has no siblings, her future would be bleak and uncertain.  

	e.  when he signed up for spouse and children coverage for SBP, he had no understanding that there could be such a severe negative impact on his daughter's other benefits.  He relied on the advice provided to him at the time of his retirement and he thought he was making the best decision for his daughter's future needs.  His daughter currently resides in a well-managed facility with a caring staff and they were relieved their daughter would be well-cared for when they were gone.  They were distraught to discover that the SBP decision that was made thinking it was the best choice for their daughter has jeopardized her well-being and future.     

3.  The applicant provides:

* His daughter's military dependent identification card
* Court order appointing him and his spouse as guardians for their daughter

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 21 December 1948.  He entered active duty on 
18 November 1972.

3.  His DD Form 2656, dated 19 August 2003, shows he enrolled in the SBP for spouse and children, full base amount.  This form shows his dependent child (daughter) is disabled.

4.  He retired effective 31 August 2003 in the rank of colonel. 

5.  He provided a court order, dated 29 April 2005, which shows his daughter was declared to be an incapacitated person (due to mental retardation) and the applicant and his spouse were appointed her guardians.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows he enrolled in the SBP for spouse and children coverage on 
19 August 2003. 

2.  He contends in February 2011, while setting up a trust for his severely handicapped daughter, he was advised if his daughter received SBP benefits she would become ineligible for the SSI and Medicaid benefits she is now receiving and she would be forced to move from the facility she currently resides in even though the SBP benefits would be far less than the combined benefits of SSI and Medicaid.  

3.  Since it appears his SBP election has jeopardized his daughter's well-being and future, it would be equitable to correct his records to show he elected to participate in the SBP for spouse only coverage in a timely manner.  



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 he elected to participate in the SBP for spouse only coverage on 
19 August 2003 and that his election was processed in a timely manner.




      _______ _  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)                                         AR20110004559





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ABCMR Record of Proceedings (cont)                                         AR20110004559



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