IN THE CASE OF:
BOARD DATE: 7 June 2012
DOCKET NUMBER: AR20110024450
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 a change of his Survivor Benefit Plan (SBP) election from "Spouse and Children" to "Spouse Only."
2. The applicant states he just learned through a Social Security forum that his disabled child would lose Social Security Supplemental Income (SSI) benefits if both he and his spouse predeceased their child based on her receipt of SBP.
3. The applicant provides a special needs information paper in support of his request.
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 retired in the rank of colonel on 30 June 2005 after completing 26 years and 17 days of active military service.
3. The Defense Finance and Accounting Service (DFAS) record shows the applicants SBP election since retirement has been "Spouse and Children" full coverage.
4. The applicant provides a special needs information paper that indicates SBP payments are considered income for SSI purposes and if this income causes the child to lose SSI he/she would also lose Medicare coverage. Although still eligible for TRICARE, the loss of Medicare would result in the loss of long term support benefits.
5. Title 10, U.S. Code, section 1448 provides guidance on the application of the SBP. It states that an election once made is irrevocable once a person first becomes entitled to retired pay. Section 1455 of the law provides for the Secretary concerned to correct or revoke any election when the Secretary considers it necessary to correct an administrative error.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to change his SBP election to full "Spouse Only" coverage due to the potential loss of SSI and Medicare benefits to his disabled child if predeceased by both parents has been carefully considered and found to have merit.
2. Although elections once made are normally irrevocable, the law does allow the Secretary concerned to correct or revoke any election when he/she considers it necessary to correct an administrative error.
3. In this case, it is clear that had the applicant been aware of the potential loss of benefits to his disabled child as a result of her being covered under his SBP election, he would have not made this election at the time of his retirement. As a result, it is reasonable to conclude there was an administrative error made in his election based on the lack of counseling on this matter at the time of his retirement. Given this error, it would be appropriate and serve the interest of justice and equity to correct the applicants record to show he elected full "Spouse Only" SBP coverage at the time of his retirement, and to reimburse him any amount of his premiums in excess of the cost of this "Spouse Only" election since the date of his 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 he elected full "Spouse Only" SBP coverage at the time of his retirement and by paying him all premiums collected in excess of the cost of "Spouse Only" coverage since the date of his retirement.
___________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) AR20110024450
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110024450
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
CG | BCMR | Other Cases | 2009-079
The applicant stated that his son receives monthly Social Security Supplemental Income (SSI) benefits as well as Medicaid assistance to pay for group home care, day support, transportation, case management, medication, and psychiatric service, all of which amounts to a yearly benefit of approximately $105,333.21. CGPPC stated that the applicant did not elect out of SBP and instead elected child and spouse coverage, and that there is no evidence in the record that either the applicant or his...
ARMY | BCMR | CY2010 | 20100020828
He adds during transition at Fort Knox he elected spouse and child SBP coverage and explained that any SBP distributions made to his daughter must go to her trust. The applicant made a valid SBP election to enroll in the SBP for spouse and child coverage, full base amount at the time of his application for retired pay. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected to enroll in SBP for spouse coverage...
AF | BCMR | CY2013 | BC 2013 00558
If his son were to receive SBP benefits due to the applicant passing away, his son would lose all his Federal and state benefits because he would then fail the income tests which are predicates to these entitlements. Title 10 USC § 1447 (11), states an eligible child is a person who is incapable of self-support because of a mental or physical incapacity existing before the persons eighteenth birthday The Social Security Administration (SSA) and other Federal and state benefits for the...
AF | BCMR | CY2013 | BC-2013-00558
If his son were to receive SBP benefits due to the applicant passing away, his son would lose all his Federal and state benefits because he would then fail the income tests which are predicates to these entitlements. Title 10 USC § 1447 (11), states an eligible child is a person who is incapable of self-support because of a mental or physical incapacity existing before the persons eighteenth birthday The Social Security Administration (SSA) and other Federal and state benefits for the...
ARMY | BCMR | CY2008 | 20080006469
The applicant states, in effect, when he submitted his application for retired pay in March 2007, both he and his spouse declined SBP coverage. Section V (Additional Information), Item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan? The evidence of record shows that the applicant submitted a DD Form 2656 (Data for Payment of Retired Personnel), on 29 March 2007, for the purpose of receiving retired pay at age 60.
ARMY | BCMR | CY2014 | 20140013829
When the applicant applied for retired pay at age 60, he again submitted an SBP election and alerted DFAS officials to the fact that his child was disabled and that, in effect, he still desired the election he made in the previously-submitted DD Form 1883. If the spouse were to die, then Gregory, the disabled child, would receive the SBP annuity. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the applicant...
ARMY | BCMR | CY2012 | 20120007352
An election, once made, is permanent and irrevocable except as provided for by law. Since it appears the FSM's SBP election jeopardizes his son'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 at the time of his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM elected to enroll in the SBP for spouse only...
ARMY | BCMR | CY2013 | 20130022154
The applicant, the former spouse of a retired, former service member (FSM), requests she be designated as the beneficiary of his Survivor Benefit Plan (SBP). Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. It is unclear why his SBP coverage changed in May 1993 when his child...
ARMY | BCMR | CY2012 | 20120010237
BOARD DATE: 8 January 2013 DOCKET NUMBER: AR20120010237 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. When the error was discovered, his son was added to the SBP account and an adjustment was made from "declined" to "child" coverage, effective 1 July 2011. The law stipulates that a member who does not have a dependent child at the time of initial eligibility for SBP may elect coverage for a dependent child within the one-year period after acquiring the first dependent child.
ARMY | BCMR | CY2011 | 20110022303
IN THE CASE OF: BOARD DATE: 12 July 2012 DOCKET NUMBER: AR20110022303 THE BOARD CONSIDERED THE FOLLOWING 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. Her DD Form 2656, dated 15 June 1995, shows she elected SBP coverage for children only, based on full gross retirement pay.