IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013829 


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

2.  The applicant states he wants to be released from the SBP child coverage but desires to keep the spouse coverage.  He elected Reserve Component SBP (RCSBP) coverage in 1975 upon receiving his 20-year letter.  His son was age 
2 at the time and they were unaware of his disabilities.  His son will lose his State Developmental Disability Department benefits which entitle him to be placed in the Advo Serv of New Jersey Group Home in Bridgewater, NJ.  According to state law, his son is not allowed to incur any income while receiving this benefit.  If he were to receive the SBP annuity, he would lose his benefits, Medicaid, and housing entitlements.

3.  The applicant provides: 

* Superior Court of New Jersey Verified Complaint for Appointment of Guardianship 
* Retiree Account Statement (August 2014)

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 FSM was born in July 1936.  He was appointed as a Reserve commissioned officer of the NJ Army National Guard (NJARNG) and executed an oath of office on 13 May 1961.  He and his spouse Judith were married on 4 April 1970.

3.  He served in a variety of assignments in the ARNG and the U.S. Army Reserve (USAR), including mobilization to active duty and service in Vietnam.  He attained the rank of lieutenant colonel (LTC). 

4.  On an unknown date, the NJARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 19 September 1979, he completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Judith and they had three children: Michelle, born in January 1971; Gregory, born in September 1973, and Christine, born in October 1975.  He elected "spouse and children" RCSBP coverage, Option C (immediate coverage), based on the full amount.  He and his spouse authenticated this form with their signatures. 

6.  On 6 June 1989, the USAR Personnel Center, St. Louis, MO published orders honorably discharging him from the USAR and transferring him to the Retired Reserve effective 18 August 1989.

7.  On 29 November 1995, in connection with his application for retired pay at age 60, he submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to Judith and they had two daughters and a disabled child (Gregory).  He did not make an SBP election on this form, but he wrote the words "See Copy of Attached DD Form 1883" and he attached multiple medical documents together with a physician certification confirming his child's (Gregory) disabilities (psychosis, developmental and learning disabilities).  

8.  On 30 May 1996, the USAR Personnel Center, St. Louis, MO published orders honorably retiring and placing him on the Retired List in his retired rank of LTC, effective 20 July 1996, on his 60th birthday. 

9.  His pay records at the Defense Finance and Accounting Service contain the 1979 DD Form 1883 as well as the 1995 DD Form 2656 (with medical/disability documents).  

10.  In August 2004, the applicant and his spouse filed a motion with the Superior Court of New Jersey for appointment as co-guardians of their disabled son Gregory due to his mental health disabilities.  The court adjudged Gregory to be mentally incapacitated and granted the applicant and his spouse, Judith, guardianship. 

11.  The applicant's August 2014 Retiree Account Statement shows he currently has "spouse and child(ren)" SBP coverage and his premiums consist of the spouse cost, child cost, and the RCSBP cost.  

12.  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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  

13.  Title 10, U. S. Code, section 1447(11) defines "dependent child" as a person who is (1) unmarried; and (2) who is under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday or incurred on or after the 18th birthday but before the 22d birthday while pursuing a full time course of study or training; and (3), who is the child of a person to whom the Plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.

14.  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:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option B - 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

15.  Once a member elects either option B or option 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.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG/USAR from May 1961 to July 1996.  He was married in April 1970 and they had three dependent children, one of which is Gregory, a disabled child since birth.  When the applicant received his 20-year letter, he made an RCSBP election for "spouse and children" under Option C based on the full amount.  

2.  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.  He also submitted the medical documents to support his intent to provide coverage for his spouse and child(ren). 

3.  It appears the disabled child, Gregory, is entitled to and/or is receiving certain State benefits that presume he has no income from any source.  If the applicant were to die, the spouse, Judith, would receive the SBP annuity.  If the spouse were to die, then Gregory, the disabled child, would receive the SBP annuity.  Such an event could trigger a loss of State benefits that neither the applicant nor his spouse could have foreseen when they made their RCSBP election in 1978.  

4.  It is reasonable to presume if the applicant had known the impact of his 1979 SBP election on his son Gregory, he would have elected a different option.   Therefore, as a matter of equity only, the applicant's records should be corrected to show he elected "spouse" instead of "spouse and children" RCSBP coverage when he received his 20-year letter in 1979.  






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 submitted a DD Form 1883 on 19 September 1979 and elected "spouse" RCSBP coverage, Option C (immediate coverage), based on the full amount
* showing his request was timely received and processed by the appropriate DFAS office
* adjusting the individual's pay/record and providing him any overpayment of premiums 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)                                         AR20140013829



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ABCMR Record of Proceedings (cont)                                         AR20140013829



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