From:  Chairman, Board for Correction of Naval Records 
To:     Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO   
   
 
Ref:   (a) Title 10 U.S.C. § 1552 
 (b) DODFMR, Vol 7B, Chp 43 
 
Encl:   (1) DD Form 149 w/attachments 
        (2) Subject’s naval record 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to reflect Survivor Benefit Plan (SBP) Child only coverage. 
                                              
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 14 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations and policies. 
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.  The Board made the following findings: 
 
     a.  In accordance with reference (b), a member who did not elect child coverage for a dependent child, either at the time of becoming eligible for retired pay (if applicable) or within 1 year of acquiring the first dependent child, may not elect child coverage for subsequently acquired child or children unless otherwise provided by law.   
 
     b.  Petitioner earned 20 total years of qualifying service on 29 September 1988. 
 
     c.  Petitioner married  on 25 August 1990. 
 
     d.  Petitioner’s daughter,  was born on 31 August 1992. 
 
     e.  Petitioner’s daughter,  was born on 24 February 1994. 
 
     f.  Petitioner transferred to Retired Reserve without-pay effective 1 April 1995.  
 
     g.  Petitioner divorced  on 31 July 1998.  Divorce decree did not direct SBP Former Spouse coverage. 
 
     h.  Petitioner married  on 10 November 2005. 
 
     i.  On or about 16 November 2007, Petitioner submitted DD Form 2656, Data for Payment of Retired Personnel with spouse concurrence declining to participate in SBP. 
 
     j.  Petitioner transferred to Retired Reserve with-pay effective 10 March 2008. 
 
     k.  Petitioner divorced  on 15 July 2013.  Final Judgement of Dissolution of Marriage did not direct SBP Former Spouse coverage. 
 
     l.  On 14 July 2014, Bureau of Medicine and Surgery (BUMED) issued a recommendation to Navy Personnel Command (NPC) indicating  is not capable of self-support, the incapacity existed prior to age 21/23 and the incapacity is considered permanent for continued privileges. 
 
     m.  Petitioner married  on 11 September 2017. 
 
     n.  On 21 February 2019, NPC issued Petitioner notification of incapacitated family member’s mandatory recertification being completed.  
 
     o.  Petitioner and spouse signed SBP Affidavit before a notary witness on 6 November 2020 indicating “SBP proceeds go to Special Needs Trust for my daughter who is permanently disabled ”. 
                                
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action.  The Board concluded Petitioner provided sufficient evidence to reflect daughter’s incapacitated status and certification of Special Needs Trust (SNT).  However, because National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, amendment to 10 U.S.C. § 1448, 1450, and 1455 giving Military Service members and retirees the option to direct payment of an annuity for a dependent child to an SNT occurred after Petitioner retired, the Board felt that under these circumstances, a measure of relief is warranted. 
 
RECOMMENDATION 
 
That Petitioner’s naval record be corrected, where appropriate, to show that: 
 
Petitioner’s DD Form 2656, Data for Payment of Retired Personnel dated 6 November 2007 is amended to reflect SBP “Children” vice “Declined” coverage with spouse concurrence naming and  as the beneficiaries, based on full gross pay, prior to transferring to the Retired Reserve with-pay on 10 March 2008.   
 
Note: No waiver of unpaid premiums will be granted.   
                                                             
A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 
 
5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy. 
                                                                 
                                                             3/7/2021