IN THE CASE OF:	 

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130008509 


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 the records of her deceased father, a former service member (FSM), by awarding her "children only" or "insurable interest" benefits under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states:

   a.  On 27 February 2001, her father completed an ARPC Form 3854 (RC Supplemental SBP Election Certificate (RCSSBP) and elected to participate in the RCSSBP for his spouse/former spouse with a 5 percent level of coverage.  On a DD Form 1883 (SBP Election Certificate), dated 27 February 2001, he stated that he was married and had dependent children.  On a DD Form 2656-5 (RCSBP), dated 10 March 2006, he checked the "No" block for whether he was married or had dependent children.  On the second page of this DD Form 2656-5 is marked "declined coverage to spouse/former spouse."

   b.  Since the ARPC Form 3854 is incorrect it has been hard for her to receive his benefits.  She has a physical limitation keeping her from supporting herself.  It has been extremely difficult for her to find employment due to this condition.  Due to the circumstances, she was unaware that retirement benefits had a time limit, so she called the human resources office and received a DD Form 2656-7 (Verification for Survivor Annuity) to complete in order to obtain her father’s benefits.  Once she completed the form and attached the proper documents, she was contacted by the U.S. Army Human Resources Command (HRC) Retirement Section and told she was denied due to her age.
   c.  HRC requested to speak to her mother, who completed the DD Form 149 (Application for Correction of Military Record), for a correction of record.  Due to the DD Form 1883 showing her father elected "children only" her mother was denied his benefits.

3.  The applicant provides:

* Her birth certificate
* ARPC Form 3854
* DD Form 1883
* DD Form 2656-5
* Father’s death certificate
* A facsimile cover sheet from a Dr. Sanders

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 27 November 1973.  He was released from active duty on 24 November 1976 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He again enlisted in the RA on 7 November 1978.

2.  The applicant provided a copy of a Texas Department of Health Certificate of Birth, recorded on 4 February 1985, which indicated an individual with the same name as the applicant was born on 22 November 1984.

3.  The FSM was discharged from active duty on 9 November 1988.  He enlisted in the Kentucky Army National Guard on 18 August 1993.   He was transferred to the Retired Reserve on 30 November 2000.

4.  On 21 January 2001, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

5.  On 27 February 2001, he completed and signed a DD Form 1883.  He indicated he was married and had a dependent daughter (the applicant) born on 22 November 1984.  He elected "children only" coverage, full amount, Option C (Immediate Coverage).  His spouse concurred with his election by placing her signature in the appropriate block.  

6.  Also on 27 February 2001, he completed and signed an ARPC Form 3854 electing to participate in the RCSSBP for his spouse/former spouse with a 5 percent level of coverage.

7.  Section III (Family Information) of the DD Form 1883 stated, "I have the following unmarried dependent children under age 22 (or over age 22 and incapable of self-support because of a disability incurred before age 18, or after age 18, but before age 22 while attending school)."  The form also advised that when all children cease to be eligible for an annuity, the additional cost of child coverage shall stop effective the first day of the month following that in which the last child ceases to be eligible for an annuity.  The applicant was named on the form and was 16 years of age at the time.

8.  On 17 February 2006, the FSM completed and signed a DD Form 2656-5.  He indicated he was not married and had no dependent children.  He elected “children only” coverage at full retired pay, Option C (Immediate Annuity).  Item 11 (Dependent Children) of this form stated, "Complete this section for your unmarried children who are under age 18, or under age 22 if full-time student, or any age if disabled and incapable of self-support before age 18 (or 22 if a full time student)."  He declined supplemental coverage for his spouse/former spouse.  The form is signed by the FSM and a witness, but was not signed by the spouse.  The applicant was 21 years of age at the time.

9.  In Section VII (Insurable Interest Coverage) of the 2006 DD Form 2656-5, the FSM listed the applicant as the beneficiary.  

10.  The applicant reached 22 years of age on 22 November 2006.

11.  The FSM died on 25 June 2007.  He was 55 years old at the time of his death.  His death certificate indicated that he was married (to the applicant's mother) at the time and listed his daughter (applicant) as the informant.  The applicant was 22 years of age at the time of his death.

12.  The applicant also provided a copy of a faxed page, dated 26 August 2004, from Summit Medical Group – Taylor Mill which stated the applicant was unable to work at the time due to a worsening of her cerebral palsy which was a lifetime condition.

13.  A review of the HRC Integrated Web Services database revealed the applicant and her mother communicated with officials at HRC regarding the RCSBP annuity.  An entry, dated 1 February 2012, stated, "sent denial to spouse.  Service member elected child only on the DD Form 1883."  Another entry dated the same date stated, "service member submitted DD Form 2565-6 to change from children only to insurable interest, child became too old.           DD Form 2656-6 is not valid; reasons spouse did not sign off and the service member checked no or not married; death certificate stated service member was married to [applicant]."

14.  On 21 August 2012, the ABCMR denied the FSM’s spouse's request for an RCSBP annuity based on the FSM’s 2001 election for “children only” coverage.
15.  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.  

16.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* elect to decline enrollment and choose at age 60 whether to start SBP participation
* elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or
* elect that a beneficiary receive an annuity immediately upon their death if before age 60

Once a member elects either option B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP; the options automatically roll into SBP coverage.

17.  Title 10, U.S. Code, section 1447(11)(A) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the incapacity occurred before age 18 (or before age 22 if a full time student).  

18.  Title 10, U.S. Code, section 1448(a)(3) states a married person who is eligible to provide a standard annuity may not without the concurrence of the person's spouse elect not to participate in the SBP; to provide an annuity for the person's spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person's spouse.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM executed a DD Form 1883 on 27 February 2001 electing "children-only" coverage and his spouse concurred with his election.  The child identified on the form is the applicant in this case.  It is unclear why the FSM also completed the RCSSBP form.

2.  The FSM executed a DD Form 2565-5 on 17 February 2006 wherein he indicated he was not married and had no dependent children and elected "children only" coverage at full retired pay, Option C (Immediate Annuity).  In Section III of this DD Form 2565-5, the FSM listed the applicant as the beneficiary for insurable interest.  On its face, the form appears to be inaccurate as to his marital status, because the FSM remained married to the applicant's mother.  Though the option was available, the FSM did not list the applicant as a disabled child.  This form was not signed by his spouse.

3.  The applicant turned 22 years of age on 22 November 2006 and, if not in school full-time or disabled and incapable of self-support, was no longer an eligible beneficiary.  The FSM died on 25 June 2007.  In 2012, HRC advised the applicant and her mother that the 2006 DD Form 2565-5 was not valid because the spouse did not sign off and the FSM indicated that the was not married and his death certificate stated he was married to the applicant’s mother.  

4.  In this case, the FSM, with his spouse’s concurrence, elected "children only" coverage for their daughter (the applicant) in 2001.  However, at the time of her father's death, the applicant had aged out of her dependency status.  There is no provision in the laws governing RCSBP/SBP which permit a change from child coverage to insurable interest coverage in order to continue coverage for a child who has aged out or who becomes disabled and incapable of self-support as an adult.

5.  The FSM's election of children only coverage remains.  It appears the applicant is entitled to an annuity, if and only if, she establishes to the satisfaction of DFAS that she is incapable of self-support due to a disability and the incapacity was incurred while still an otherwise eligible child dependent.  Though the applicant has provided some evidence that shows she suffers from cerebral palsy, there is nothing in the FSM's records to show her incapacity to be self-supporting was incurred prior to her aging out.  

6.  Regrettably, in view of the foregoing there is an insufficient evidentiary basis for granting the applicant’s requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20130008509



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ABCMR Record of Proceedings (cont)                                         AR20130008509


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