ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03881-2

XXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

The previously approved decision to void Survivor Benefit Plan (SBP) coverage for his disabled daughter be reversed.

RESUME OF THE CASE

The applicant is a retired Air Force master sergeant (E-7).  The applicant was married, had eligible children and elected child only SBP coverage based on full retired pay prior to his 1 March 1998 retirement.  He properly reported his daughter as a disabled child.  His youngest child lost eligibility due to age in July 2006.  

On 26 June 2014, the Board considered and granted his request to void SBP coverage for his disabled daughter, finding that the applicant had provided sufficient evidence of an injustice to justify relief.  AFPC/DPFFF recommended approval, noting that if a member elects child coverage in conjunction with an election for the spouse, or elects child only coverage, the SBP annuity may be paid to the child’s conservator or trustee, but cannot be paid to a special needs trust.  In addition, various income tests used by the Social Security Administration (SSA) and other Federal and State agencies to determine eligibility for benefits for disabled children do not exempt SBP payments.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit D.

On 23 March 2020, the applicant requested reconsideration of his request.  He recently discovered that the 2015 National Defense Authorization Act authorizes a Supplemental Security Income (SSI) beneficiary entitlement to SBP with a specific type of special needs trust.  He has established the new trust and requests another correction to reestablish SBP coverage.

The applicant’s complete submission is at Exhibit E.

AIR FORCE EVALUATION

AFPC/DPFFF recommends granting the applicant’s request.  Defense Finance and Accounting Service’s (DFAS) records reflect the applicant elected child only SBP coverage, based on full retired pay prior to his 1 March 1998 retirement.  After his retirement, the applicant discovered that the SBP annuity would disqualify his daughter from receiving SSI and the Colorado Home and Community-Based Supported Living Service waiver, even though a special needs trust had been established.  Therefore, the applicant applied to the Board requesting his election for child only coverage be voided.  The request was approved and the applicant’s record was corrected to reflect he declined SBP coverage and his wife concurred in the election, effective 1 March 1998.  Subsequent to that approval, the applicant discovered that a First Party Pay Back Trust would allow an SSI beneficiary to receive SBP without disqualification.  A new trust has been established and the applicant is requesting a correction to reestablish child only SBP coverage. 

The complete advisory opinion is at Exhibit F.
APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 August 2020, for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board concludes the applicant is the victim of an injustice.  The Board notes the applicant has provided a statement addressed to DFAS indicating a new trust has been established, which is sufficient to justify changing the original findings and recommendation of the Board. Therefore; the Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence substantiates the applicant’s contentions.  Accordingly, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a. On 1 March 1998, he submitted a timely and effective SBP election for child only coverage, based on full retired pay, with spouse concurrence, naming CHILD as the eligible beneficiary. 

	b. Approval is contingent upon recovery of all retroactive SBP costs; the applicant providing a notarized statement verifying CHILD has never been married; medical documentation showing the date she was first diagnosed, the nature and severity of the disability, and if the disability is permanent; and a doctor statement advising whether or not the disability renders her incapable of self-support.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2013-03881-2 in Executive Session on 28 January 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit D:	Record of Proceedings, w/ Exhibits A-C, dated 26 June 2014.
Exhibit E:	Application, DD Form 149, w/atchs, dated 23 March 2020.
Exhibit F:	Advisory opinion, AFPC/DPFFF, dated 4 June 2020. 
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, mailed 26 August 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.