BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003265 


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, correction of his records to show he elected "spouse" only vice "spouse and children" Survivor Benefit Plan (SBP) coverage.

2.  The applicant states when he first elected to have his disabled child included in the SBP coverage he was unaware how it would negatively impact her other benefits.  He felt that was the best decision for his disabled daughter when she was born.  However, now at age 50, the SBP annuity would not be in her best interest since it affects her entitlements and living arrangements, specifically social security disability benefits.

3.  The applicant provides:

* Letter from his daughter
* Department of Veterans Affairs (VA) Disability Pension
* Statement from an organization that assists disabled individuals
* Certificate of Service
* Letter from the Defense Finance and Accounting Service (DFAS)
* Durable Power of Attorney
* Medical statement
* Hospital discharge summary
* VA Form 21-4138 (Statement in Support of Claim)
* Child birth certificate
* 
Marriage certificate
* Spouse certificate of death

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 18 December 1918.

3.  He was inducted into the Army of the United States and he entered active duty in an enlisted status on 7 February 1941.

4.  He was appointed as a commissioned officer in the rank of second lieutenant and he executed an oath of office on 19 March 1943.

5.  On 28 July 1944, he was separated from active duty by reason of disability.  He was placed in a retired status on 29 July 1944.

6.  On 26 October 1991, the applicant married Florence.

7.  It appears the applicant enrolled in the SBP during the 1992-1993 Open Season for spouse and child.  The child's birth certificate shows her name as Mary Christine, born on 25 February 1963.  The applicant refers to her as Chrissie.

8.  On 23 April 1993, the applicant received a DFAS-IN Form 20-108 (Reply to Correspondence or Request for Information Regarding SBP) that shows the entry "SBP cost was reinstated effective 1 November 1992 because of marriage on 26 October 1991."  The names "Florence and Chrissie" appear on this form.

9.  On 11 June 2013, the applicant's spouse, Florence, died.

10.  According to the applicant's DFAS pay record, he reached age 70 and paid up the maximum SBP premiums on 1 October 2008.  SBP coverage remained for spouse and child, but no SBP premiums were further deducted from his retired pay account.

11.  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.  An election, once made, was irrevocable except in certain circumstances.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

12.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed in a retired status on 29 July 1944.  The SBP did not exist at the time.  He and Florence were married on 26 October 1991.  It appears he made an SBP election for spouse and child coverage during an Open Season that was conducted from 1 October 1991 through 30 September 1992.  

2.  When the applicant made the SBP election for spouse and child, it appears his child was disabled.  It also appears the applicant did not know the future impact such coverage would have on his disabled child's benefits, such as social security disability benefits, Department of Veterans Affairs benefits, or other benefits.  He could not foresee the future.  Had the applicant known of such implications, it is reasonable to presume he would have elected "spouse" only coverage vice "spouse and child" coverage.

3.  Although there is neither a statutory nor a regulatory error in the applicant's records, as a matter of equity only, his records should be corrected to show he made an SBP election for "spouse" only coverage vice "spouse and child" coverage.  This would in effect remove the child category from his election and in the event he dies, his child would not be entitled to an SBP annuity.


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 applicant elected "spouse" only SBP coverage during the 1992/1993 Open Season.



      __________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)                                         AR20130003265



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ABCMR Record of Proceedings (cont)                                         AR20130003265



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