DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2873-20 Ref: Signature Date 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 establish Survivor Benefit Plan (SBP) Child coverage. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 12 April 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), SBP elections must be made prior to retired pay becoming payable. An SBP participant may choose to voluntarily discontinue SBP participation during a 1-years period beginning on the second anniversary of receiving retired pay; however, the member may not resume participation in SBP for any category of beneficiary. b. Petitioner married on 18 May 1991. c. Petitioner’s was born on . d. Petitioner’s son was identified as an Exceptional Family Member (EFM) as early as 23 August 2004 (age 11), by Commanding Officer, Naval Medical Clinic, . On 8 November 2004, Petitioner was assigned as a Category 4, EFM. e. On 30 September 2009, Petitioner and his spouse signed DD Form 2656, Data for Payment of Retired Personnel before a notary witness and elected SBP Child only coverage. f. Petitioner transferred to the Fleet Reserve effective 1 February 2010 and SBP Child coverage began the same day. g. On 31 December 2012, Petitioner elected to discontinue SBP participation. h. On 26 June 2014, Chief of Bureau of Medicine and Surgery, Department of the Navy, determined Petitioner’s son was not capable of self-support, the incapacity existed prior to age 21 or 23 (if enrolled as a full-time student) and the incapacity was considered permanent. i On 2 January 2019, Navy Personnel Command recertified Petitioner’s son in the Navy’s Incapacitated Dependent Program. j. On 27 February 2020, a Special Needs Trust (SNT) was established in the , State of , between Petitioner and his spouse, as Settlors, and as Initial Co-Trustees. The Trust was established for the sole benefit of Petitioner’s son, . k. Petitioner and spouse signed SBP Affidavit before a notary witness on 11 September 2020 electing SBP Child coverage or . 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 son’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 and terminated coverage, the Board felt that under these circumstances, relief is warranted. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner elected SBP Child coverage with spouse concurrence naming as the beneficiary based on full gross pay level of coverage prior to transferring to Fleet Reserve effective 1 February 2010. All previous elections are null and void. This change will authorize Petitioner to establish an SNT as beneficiary. However, coordination with Defense Finance and Accounting Service is required. 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. 5/14/2021 3