DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-079 
 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 
   

FINAL DECISION 

 

 
 

 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case, upon receipt of 
the applicant’s completed application and military records on January 30, 2009, and subsequently 
prepared the final decision for the Board as required by 33 C.F.R. § 52.61(c).          
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 12, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant asked the Board to correct his record by amending his Survivor’s Benefits 
Plan  (SBP)  Election  Certificate  (DD  Form  1883)  dated  September  3,  1995,  to  show  that  he 
elected spouse only full coverage rather than spouse and child coverage. 

 
The applicant retired from the Coast Guard by reason of sufficient service for retirement 
effective December 1, 1995.  Prior to his effective retirement date he executed a SBP election 
certificate for spouse and child coverage based on his full retired pay.  The child coverage was 
for his adult son who has been disabled since his birth.  According to his January 1996 Retiree 
Annuitant  Statement,  $260.96  was  deducted  monthly  for  spousal  SBP  coverage  and  .48  was 
deducted monthly for child coverage.    

 
On September 13, 1995, the applicant and his wife became the legal guardians for their 
22 year old disabled son pursuant to an order of the Circuit Court of the City of Chesapeake, VA.  
The applicant stated that his son receives monthly Social Security Supplemental Income (SSI) 
benefits as well as Medicaid assistance to pay for group home care, day support, transportation, 
case management, medication, and psychiatric service, all of which amounts to a yearly benefit 
of approximately $105,333.21.  The applicant stated that should he and his wife pass away, the 
income his son would receive from SBP would make him ineligible for SSI and Medicaid.  The 
applicant  stated  that  under  SBP,  his  son  would  receive  only  approximately  $40,000  per  year 

which  is  insufficient  to  cover  the  services  and  care  he  is  currently  receiving  through  the 
Medicaid program.   

 
The applicant asserted that his SBP election of spouse and child coverage was based upon 
erroneous  advice  and  guidance  from  Coast  Guard  Personnel  during  a  retirement  transition 
seminar on June 12-13, 1994.  He further stated the following:  

 

During the retired pay/survivor benefit plan portion of the seminar PO [I] strongly 
urged the attendees with incapacitated children to elect a “lifetime coverage for an 
incapacitated child.”    . . . To drive the point home, attendees were provided with 
a  document  entitled  “Common  Questions  about  SBP.”    On  page  two  of  this 
document SBP is termed a “must” and “an extremely good buy” in the case of an 
incapacitated child . . .      
 
I did not learn how egregiously wrong the advice was that I received from Coast 
Guard Personnel at the 1994 seminar that prompted me to mistakenly elect SBP 
coverage for my son until I received [an email] on 9 November 2008 from Mr. 
[S],  a  retired  Navy  commander  with  an  incapacitated  daughter  and  a  fellow 
director  of  the  Chesapeake  Community  Services  Board.   Attached  to  Mr.  [S’s] 
email was an article that clearly outlines the dangers of electing SBP coverage for 
a disabled child that receives [SSI] and Medicaid support.  If my SBP election for 
coverage  of  my  incapacitated  son,  which  was  based  on  extremely  poor  or 
incorrect advice from Coast Guard personnel is allowed to continue in effect, my 
son will lose his group home where he receives 24/7 supervision and support and 
he will become ineligible for Medicaid Waiver funded day support, transportation 
support, case management, and psychiatric support.   

 
 
The  applicant  stated  that  he  is  not  asking  to  recoup  any  past  monies  paid  for  child 
coverage; he just wants to ensure that his son continues to receive the care and support he needs.  
 
 
In support of his application, the applicant submitted his SBP Election Certificate dated 
September 3, 1995; transition seminar agenda and personal notes; a handout addressing common 
questions about SBP that was distributed at the seminar; documents from Mr. S; the appointment 
of  legal  guardianship  for  his  son;  two  documents  from  the  Social  Security Administration;  a 
letter  from  the  son’s  group  home;  email  from  the  executive  director  of  the  Chesapeake 
Community Services Board stating the estimate of the cost of his son’s Medicaid benefits; copy 
of  his  DD  214  and  retirement  orders;  and  a  January  1996  and April  2008  Retiree Annuitant 
Statement.   
 

VIEWS OF THE COAST GUARD 

 
 
On April 16, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted a 
memorandum  from  the  Commander,  Coast  Guard  Pay  and  Personnel  Center  (CGPPC)  as  the 
advisory opinion.  CGPPC recommended that the Board deny the applicant’s request.   
 

CGPPC stated that the BCMR may correct a record when necessary to correct or remove 
an  injustice.    Further  CGPPC  stated  that  the  Board  may  only  correct  a  record  in  favor  of  the 
service  member,  never  against  him.    Doyle  v.  United  States,  599  F.2d  984,  amended  on  other 
grounds  609  F.2d  990,  cert.  denied  446  U.S.  982  (1980)  (superseded  by  statute  on  other 
grounds).   Absent  statutory  exceptions  in  10  USC  §  1448(a)(3)(B),  a  married  person  who  is 
eligible to participate in SBP may not, without the concurrence of that person’s spouse, elect: (1) 
not to participate; (2) provide an annuity amount less than the maximum level; or (3) provide an 
annuity for a dependent child but not the person’s spouse.  A participant in the plan may elect to 
discontinue  participation  at  any  time  during  the  one-year  period  beginning  on  the  second 
anniversary after they started receiving retired pay; but, absent statutory exceptions, a married 
participant  may  not  make  such  an  election  without  the  concurrence  of  their  spouse.    CGPPC 
stated that the applicant did not elect out of SBP and instead elected child and spouse coverage, 
and that there is no evidence in the record that either the applicant or his spouse did not want 
SBP  at  the  time  of  election.    Further,  the  applicant  did  not  elect  to  discontinue  participation 
within the statutorily permitted time; therefore, his SBP election is irrevocable.  

 
CGPPC stated that materials presented at transition seminars are of a general nature and it 
is  impracticable  to  argue  that  the  Coast  Guard  members  who  present  retirement  briefs  should 
know the intricacies and impact of designating a handicapped child a SBP beneficiary and the 
effect of unearned income vis-à-vis SSI payments and Medicaid law.  CGPPC further asserted 
that it is hard to comprehend how a parent with an incapacitated child would rely solely on the 
representations of a seminar presenter as the applicant claims he did.   

 
CGPPC stated that the applicant did not state when his son moved into the group home or 
when the SSI and Medicaid laws affected him. If the applicant’s son was already in the group 
home at the time of the 1995 SBP election, the applicant was surely aware that  unearned income 
attributed to him would count against SSI payments dollar-for-dollar.  CGPPC argued that even 
if the applicant’s son was placed in the group home after the SBP election, it was beneficial to 
him because there was no SSI or Medicaid offset concerns at the time the election was made. 

 
CGPPC argued that the applicant and his wife made an informed decision and that his 
arguments  of  an  error  or  injustice  in  his  record  are  without  merit.    CCPPC  noted  that  the 
applicant  failed  to  seek  legal  counsel  regarding  his  SBP  election  between  the  date  of  the 
transition seminar and his November 30, 1995 retirement date when he could have revoked his 
SBP election before drawing retired pay.   

 
Although CGPPC recommended that the Board deny relief, it recognized that the Board 
could grant the relief requested by the applicant or other alternative relief on equitable grounds.  
In this regard, CGPPC stated that the Board could order a correction to the base amount of SBP 
that  lowers  the  benefit  that  the  applicant’s  son  would  receive  so  that  his  payment  would  not 
exceed the maximum allowed for SSI/Medicaid.  CGPPC submitted an Army BCMR (ABCMR) 
decision No. AR20070013115 in support of its contention.  In that case, the service member had 
died and his widow requested the correction to his record to show that he elected to have SBP 
payments for his disabled paid to  the son’s trust so that the SBP payments would not be counted 
as income to the son.  The ABCMR denied this request stating that under the law payments could 
not be made to a trust.  However, the BCMR directed alternative relief by recommending that all 

Department of Army records of the individual concerned be corrected by correcting the record to 
show he elected to participate in the SBP for child only coverage at a reduced base amount of 
$1000.00. (In fashioning the alternative relief, the ABCMR knew the exact amount of the disable 
son’s annuity and SSI payments and could calculate with some degree of certainty the impact 
that the correction would have on that dependent child’s SSI coverage.) 
  

CGPPC stated that the applicant wishes to have the best of both worlds – he wants full 
SBP coverage for his wife and none for his son.  CGPPC stated that unfortunately the applicant 
and his wife made a final SBP election inconsistent with that wish and under the law that election 
is  irrevocable.    CGPPC  recommended  that  the  Board  deny  the  applicant’s  request,  but  if  the 
Board approves the request as a matter of equity, it should only approve a change to a lower base 
amount. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 22, 2009, the Board received the applicant’s response to the views of the Coast 
Guard expressing his disagreement with them.  He offered the following chronology in pertinent 
part: 
 

•  On April 10, 1994, the applicant’s son (an only child) turned 21 and became eligible for 

SSI. 

 

 

 

 

 

 

 

 

•  On June 12-13, 1995, the applicant attended the retirement transition seminar where SBP 

was discussed. 

•  On December 1, 1995, the applicant officially retired from the Coast Guard. 

• 

• 

In the fall/winter 1996, the applicant’s son was placed on the state’s list for placement in 
a group home. 

In  May1997,  the  applicant  was  notified  that  a  slot  had  opened  for  his  son  in  a  group 
home. 

•  On September 7, 1997, the applicant’s son moved into a group home where he resides 

today.   

• 

In November 2008, the applicant became aware of the negative impact that the receipt of 
SBP benefits could have on his son’s eligibility for SSI and Medicare.   

• 

In January 2009, the application filed for a correction of his military record.   

In  response  to  comment  in  the  advisory  opinion  that  he  did  not  elect  to  discontinue 
participation  within  the  statutorily  permitted  time,  the  applicant  stated  that  he  never  had  any 
intention of discontinuing or electing anything other than full coverage for his wife.  He stated 
that  prior  to  2008,  there  was  no  reason  for  them  to  doubt  the  advice  provided  about  the  SBP 
coverage for disabled children.   

 

With  respect  to  the  statement  in  the  advisory  that  the  applicant  should  have  known  the 
intricacies  and  impact  of  unearned  income  on  SSI,  the  applicant  stated  that  there  is  no  one 
government  or  non-government  agency  or  “magic”  road  map  to  tell  parents  of  disabled 
individuals  what  they  must  or  must  not  do  and  when  they  must  take  certain  actions.    The 
applicant stated that when he elected full coverage for his spouse and son, he had no reason to 
suspect that he needed legal assistance on the matter.  He stated that on the contrary he had a 
written handout from the Coast Guard stating that SBP was an extremely good buy in the case of 
an incapacitated child.   
 
 
The applicant stated that he finds the alternative relief recommended by the Coast Guard 
that his record be corrected to show a lower base amount unattractive because it puts him in a 
position of having to decide whose life is more important his wife’s or his son’s.  In support of 
his request, he cited three other BCMR cases:  one from the Navy (BCNR) and two from the Air 
Force (AFBCMR).   
 
1.      In  BCNR  No.  01489-09,  dated  April  20,  2009,  the  applicant  asked  that  his  record  be 
corrected to show a timely written request to disenroll from SBP under the child category for his 
disabled  daughter  that  he  had  earlier  elected  on  December  11,  1992.  He  alleged  that  he  was 
encouraged to elect SBP for a disabled child, and at the time no negative ramifications of the 
election were discussed or known to the seminar facilitators.  Subsequently, he learned that SBP 
payments  to  his  daughter  upon  his  death  would  severely  negatively  impact  her  eligibility  for 
Medicaid related services.   The BCNR directed that that applicant’s record be corrected to show 
that “he executed a written request to disenroll from his [SBP] coverage under the “child only” 
category for his disabled daughter . . . [and] the request was received by the cognizant authority 
and became effective on 1 April 2009.”   
 
2. 
In AFBCMR No. 98-02123, the applicant (who retired in 1977) requested that his record 
be  corrected  to  show  that  he  elected  spouse  only  SBP  coverage  rather  than  spouse  and  child 
coverage.    He  alleged  that  his  mentally  incapacitated  son’s  receipt  of  SBP  benefits  would 
severely negatively impact his receipt Medicaid benefits.   He alleged that if he had been told of 
this negative impact on his son’s other benefits at the time he was signing up for SBP he would 
not have included his son as a SBP beneficiary.  The AFBCMR did not find an error in the case, 
but it did find a probable injustice.  The AFBCMR stated that “in view of the fact that applicant’s 
incapacitated son’s medical will be stopped if his son receives SBP premiums, we believe that it 
would be unjust to deny the relief requested.  Furthermore, it appears that the applicant may not 
have  been  provided  information  concerning  the  adverse  impact  that  receiving  SBP  premiums 
would have on his son’s other benefits.” The AFBCMR ordered that applicant’s record corrected 
to  show:    “a.  His  8  September  1977  [SBP]  election  for  “spouse  and  child  coverage”  be,  and 
hereby is, declared void and removed from his  record.  b. On 30 November 1977, he elected 
spouse coverage only under the [SBP] based on full retired pay.”    
 
3. 
In  AFBCMR  No.  BC-2004-00450,  the  applicant  asked  that  his  military  record  be 
corrected  to  show  that  he  terminated  his  SBP  coverage  for  his  handicapped  son,  who  then- 
resided in a group home   The applicant contended that he included his son in the SBP plan only 
because of the low cost (approximately $1 for his son) and he did not realize that if his spouse 

predeceased  his  son,  which  she  did,  that  his  SBP  premiums  would  be  recalculated  and 
significantly  increase.    AFBCMR  found  an  injustice  because  the  applicant’s  son  would  not 
benefit  from  the  SBP  coverage  as  the  applicant  intended  and  that  it  was  possible  that  the 
applicant was not counseled that the cost would be recalculated if the spouse predeceased the 
son.    The  ARBCMR  directed  that  applicant’s  record  to  be  corrected  to  show  “that  on  29 
September 1982, he elected spouse coverage, rather than spouse and child coverage under the 
[SBP] based on full retired pay.”   
    
 
 

The applicant concluded his response to the advisory with the following statement: 

As a distressed parent concerned about his incapacitated son’s future welfare,  I 
respectfully  and  urgently  request  that  you  use  the  three  BCMR  cases  above  as 
precedent and conclude, as in Air Force BCMR 98-0223 that “it would be unjust 
to deny the relief requested.”  Without relief my son is doomed.  In addition to 
being a concerned father, as  a husband,  I  owe it to my wife to provide  for her 
well-being after my death.  Therefore, following the example in Air Force BCMR 
98-02123, I further request that my original SBP election of spouse and child be 
voided  and  a  substitute  election  of  spouse  only  based  upon  full  retired  pay  be 
entered into my official record.   

 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.   

 
2.  The application was not timely.  To be timely, an application for correction of a mili-
tary record must be submitted within three years after the applicant discovered or should have 
discovered the alleged error or injustice.  See 33 C.F.R. 52.22.   The applicant elected SBP for 
his spouse and dependent child on September 3, 1995 and retired effective December 1, 1995.  
The applicant knew  when he elected SBP coverage that his disabled son was eligible for SSI 
albeit at a reduced rate.  He also knew approximately within one year of the commencement of 
his retired pay that his son would require residential care through Medicaid.  The applicant had 
sufficient opportunity to research the impact of future SBP on his son’s eligibility for continued 
SSI/Medicare benefits within three years from December 1, 1995.  Although the applicant stated 
that he discovered the alleged error or injustice on November 9, 2008, the Board is persuaded 
that he could have discovered it within three years of his retirement from the Coast Guard if he 
had acted diligently in investigating the impact of future SBP payments upon his son’s current 
SSI/Medicaid benefits. 

 
3.  Although the application is not timely, the Board must still perform at least a cursory 
review of the merits to determine whether it is the interest of justice to waive the statute of limi-
tations.  In Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992), the court stated that in assessing 

 
4.  The Coast Guard did not commit an error in this case because Article 18.f.6.a. of the 
Personnel Manual states that “[a]ny election not to participate or participate at a reduced amount, 
if not rescinded or changed prior to the first date of entitlement to retired pay, is irrevocable.”  
However, as the Coast Guard advisory opinion stated the BCMR,  pursuant to 10 USC 1552, has 
the authority to make a change to an SBP election after a member retires, if it determines that an 
error or injustice exists.   

 
5.  In this case, the Board notes that an injustice exists. If the applicant’s original SBP 
election is allowed to remain, the applicant’s disabled adult son will probably become financially 
ineligible for SSI or Medicaid upon the death of the applicant.  Since the applicant’s son is an 
only child there are no siblings upon whom he can depend for care once his parents are deceased.  
Additionally, whether or not the applicant should have known to investigate the impact of SBP 
on  his  son’s  SSI/Medicaid  benefits  earlier,  the  Board  is  persuaded  that  he  did  not  realize  the 
effect of SBP on those benefits until recently.  Further, the portion of the SBP premium covering 
the child is only a few cents compared to over $200 per month for the applicant’s spouse.  Also, 
permitting the requested correction alleviates the Coast Guard’s obligation toward the dependent 
child upon the death of his parents. Therefore, the Board fails to see how the Coast Guard will be 
harmed by correcting the applicant’s record to show that he did not elect child SBP coverage. 
Accordingly,  despite  the  untimeliness  of  the  application,  the  Board  waives  the  statute  of 
limitations  in  the  interest  of  justice  and  grants  the  applicant’s  request  for  a  correction  to  his 
record to show that in 1994 he elected spouse only coverage.  He is not entitled to a refund of 
any premiums paid under the SBP program as a result of this correction. 

whether the interest of justice supports a waiver of the statute of limitations, the Board “should 
analyze both the reasons for the delay and the potential merits of the claim based on a cursory 
review.”  The court further stated that “the longer the delay has been and the weaker the reasons 
are for the delay, the more compelling the merits would need to be to justify a full review.” Id. at 
164, 165. 

 
6.  The Board will not accept the Coast Guard’s recommendation to correct the record by 
lowering  the  SBP  base  amount  because  we  do  not  know  what  amount  would  qualify  the 
applicant for Medicaid benefits.  Moreover, a correction lowering the SBP base amount, even if 
we knew the current Medicaid income limitations, might not be sufficient to ensure that the son 
would  qualify  for  future  Medicaid  benefits  upon  the  parent’s  death  because  the  requirements 
could change.  With respect to the Coast Guard’s argument that a change to the applicant’s SBP 
election circumvents the law, the Board finds that Congress by enacting 10 USC 1552 allowed 
for the correction of records in cases of error and/or injustice.  In this case as stated above, the 
Board finds that an injustice exists in the record that is detrimental to the applicant’s disabled son 
by leaving him without sufficient funds to cover his residential and medical care upon the death 
of the applicant.   
 
 
 
 
 
 

7.  Accordingly, the application should be granted.   

The  application  of  XXXXXXXXXXXXXX,  USCG  (Retired),  for  correction  of  his 
military record is granted.  His record shall be corrected to show that on September 3, 1995, he 
elected spouse only coverage, rather than spouse and child coverage, under the Survivor Benefit 
Plan based upon full retirement pay.  He is not entitled to a refund of any premiums as a result of 
this correction.   
 
 
 
 
 
 
 
 

  

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Adrian Sevier 

 

 
 Kathryn Sinniger 

 

 

 

 

 

 

 

 

 

ORDER 

 

 
 

 
 

 
 Vicki J. Ray