IN THE CASE OF
BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20130022064
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 the Survivor Benefit Plan (SBP) coverage for his incapacitated son be terminated.
2. The applicant states that:
a. Payment of the SBP would, under State of Virginia guidelines, be too much and would cause his incapacitated son to lose his group home placement at the St. John's Community Services. He did not elect spouse coverage and he does not want to be reimbursed for past paid premiums.
b. He sent a letter making this request to the Defense Finance and Accounting Service (DFAS). He was later informed to contact the U.S. Army Human Resources Command (HRC); however, they referred him to this Board.
3. The applicant provides:
* a letter to DFAS, dated 9 October 2012
* a letter from the Virginia State Director of St. John's Community Services, dated 2 December 2013
* listing of actions taken by the applicant on this 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 is a retired Regular Army colonel (COL)/O-6.
3. A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 20 July 1987, shows that, although he was married, he enrolled in the SBP for children, full base amount. This form shows his dependent child (son) is mentally and physically incapable of self-support.
4. An email note from DFAS shows he is enrolled in the SBP for child only coverage.
5. He provided a letter from the Virginia State Director, St. John's Community Services reporting the applicant's son has been a resident of one of their group homes in Virginia since 10 September 2001. The son received a Medicaid waiver from the state which provides for the funding of his placement. He cannot receive or maintain more than $2,000 in any account or he loses his Medicaid waiver and placement.
6. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
DISCUSSION AND CONCLUSIONS:
1. On 20 July 1987, the applicant enrolled in the SBP for dependent-only coverage for his son.
2. He contends that payment of the SBP would, under State of Virginia guidelines, be too much and would cause his incapacitated son to lose his group home placement at the St., John's Community Services. He did not request to be reimbursed for past paid premiums.
3. The evidence shows the son cannot receive or maintain more than $2,000 in any account or he loses his Medicaid waiver and placement. A member of the Board staff recently contacted the applicant regarding the possibility of changing the election to a reduced amount rather than terminating it entirely. The applicant requested that it be terminated entirely in order to avoid further complications.
4. Clearly the intent of the applicant and his wife was, is, and always will be to provide for their son and ensure he is taken care of. Unfortunately, what seemed like a wise choice at the time in electing child SBP coverage has now jeopardized his child's well-being and security. Accordingly, it is in the interest of equity and compassion to grant relief by correcting the applicant's record to show he did not elect to participate in the SBP at the time he completed his DA Form 4240.
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 that he elected to not participate in the SBP when he filed his DA Form 4240, dated 20 July 1987.
__________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) AR20110004559
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ABCMR Record of Proceedings (cont) AR20130022064
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