IN THE CASE OF:
BOARD DATE: 12 July 2012
DOCKET NUMBER: AR20110022303
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 her military records be corrected to change her child only Survivor Benefit Plan (SBP) election to show she elected not to participate in SBP.
2. The applicant states the child originally covered under SBP is now 34 years of age suffering from moderate mental retardation from birth. He became emancipated in 1998 and is no longer a dependent for tax, health insurance, or other purposes. In 1998, she and her husband were appointed as limited guardians solely to give consent for non-emergency medical treatment. Their son is Medicaid eligible and a resident of a Medicaid funded facility in Arkansas. If her retirement annuity ever became payable to him he would lose his Medicaid eligibility and be discharged from the Arkansas facility with insufficient income to afford necessary care in a private residential facility.
3. The applicant provides:
* a court order for appointing permanent limited guardian of a person.
* DD Form 2656 (Data for Payment of Retired Personnel)
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel states the child originally covered under SBP "is now 31 years of age and has suffered from moderate mental retardation from birth." He became emancipated in 1998 and is no longer a dependent of the applicant or her husband. They were appointed as limited guardians solely to give consent for non-emergency medical treatment for him. In all other respects he is independent of his parents and is a citizen of the State of Arkansas. He has Medicaid eligibility and has been a longtime resident of a Medicaid-funded facility in Arkansas. If the applicant's and/or her husband's retirement annuities become payable to him under the previously-selected SBP, he will lose his Medicaid eligibility in Arkansas and he would be discharged from the Arkansas facility with insufficient income to afford necessary care in a private residential facility or live any sort of semi-independent life.
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. On 31 July 1995, she retired under the voluntary early retirement program and was placed on the Retired List the following day.
3. Her DD Form 2656, dated 15 June 1995, shows she elected SBP coverage for children only, based on full gross retirement pay. Her spouse signed the form on 15 June 1995, concurring with her election.
4. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law.
5. The Department of Defense Financial Management Regulation states in the case of a representative payee receiving an annuity payment on behalf of an annuitant, the income is attributable to the annuitant and an Internal Revenue Service (IRS) Form 1099 will be issued in the annuitants name.
DISCUSSION AND CONCLUSIONS:
1. It is clear she was unaware of the complexities of SBP with respect to disabled children and the law's interplay with other disability-based entitlement programs. It is reasonable to presume she would not have made the election to include her disabled child as a beneficiary had she been properly counseled.
2. Since it appears her SBP election jeopardizes her son's well-being and future, it would be equitable to correct her records to show she elected not to participate in the SBP at the time of her retirement.
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 she elected not to participate in the SBP at the time of her retirement, with her spouses concurrence, and refunding to her any premiums due as a result 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) AR20110022303
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ABCMR Record of Proceedings (cont) AR20110022303
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