IN THE CASE OF:
BOARD DATE: 12 July 2012
DOCKET NUMBER: AR20120007352
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. (On 12 November 2011, the applicant died. In a telephone conversation with the ABCMR staff, the surviving spouse indicated she did want her husband's application for change of SBP elections to be processed to completion.)
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, he and his wife 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 his 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.
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 his wife. 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 his wife'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. He retired on 31 August 1994 and was placed on the Retired List on the following day. According to the Defense Finance and Accounting Service (DFAS), he had elected SBP coverage for spouse and children. The surviving spouse is receiving SBP payments based on the FSM's (former service member) election.
3. 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.
4. 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 the FSM 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 the FSM would not have made the election to include his disabled child as a beneficiary had he been properly counseled.
2. 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.
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 the FSM elected to enroll in the SBP for spouse only coverage (not to include children), full base amount at the time of his retirement and to refund him or his estate 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) AR20120007352
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ABCMR Record of Proceedings (cont) AR20120007352
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