Docket No. 6557-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. § 1552 (b) DODFMR, Vol 7B 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 election of Survivor Benefit Plan (SBP) Spouse and Child coverage. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 8 September 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), members who are married or have a dependent child, and who receive notice of eligibility (NOE) for retired pay, after 1 January 2001, are automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence) not to participate within 90-days of receiving the NOE. Additionally, a child is an eligible beneficiary if the child is unmarried and under the age of 18, or incapable of self-support because of physical or mental incapacity, which existed before the child’s 18th birthday or was incurred before age 22 while pursuing a full-time course of study. b. Petitioner married on 11 September 1976. c. Petitioner’s first child, was born on d. Petitioner’s second child, was born on e. Petitioner earned 20 total years of qualifying service on 30 March 1997. f. On 8 July 1997, Petitioner issued Notification of Eligibility (NOE) to Receive Retired Pay at Age 60 and Participate in the Reserve Component Survivor Benefit Plan (RCSBP). g. On 22 October 1997, Petitioner signed Reserve Component Survivor Benefit Plan form and elected Option C (Immediate Annuity) for Spouse and Children coverage at the full-retired pay level of coverage. h. August 2000 throught March 2001, Neuropsychological Evaluation Summary was completed on and she was diagnosed with severe mental disabilities. i. On 5 May 2005, Petitioner’s spouse was notified by the Social Security Administration (SSA) that daughter, was eligible to receive Supplemental Security Income effective 1 October 2004. j. Petitioner transferred to the Retired Reserve without pay effective 1 March 2007. k. On 19 February 2011, Petitioner signed DD Form 2656, Data for Payment of Retired Personnel indicating his daughter, is a dependent child that is disabled; however, elected SBP Spouse only coverage at the full gross pay level of coverage. l. On 23 May 2011, SSA notified Petitioner’s daughter, of meeting requirements for disability benefits effective 6 October 2010. m. Petitioner transferred to the Retired Reserve with pay effective and SBP Spouse coverage began; does not reflect payments for RCSBP coverage. n. Petitioner and spouse established a Trust Agreement of the Supplemental Needs Trust Agreement on 25 June 2019. o. Petitioner and spouse signed SBP Affidavit on 9 November 2020 before a notary witness electing SBP Spouse and Child coverage at full gross retired pay. 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 evidence to reflect his daughter’s incapacitated status prior to age 18. 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 Special Needs Trust (SNT) occurred after Petitioner retired, the Board felt that under these circumstances, relief is warranted. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Prior to turning age 18 (27 August 2004) Petitioner’s daughter, was diagnosed as an incapacitated dependent. Furthermore, Petitioner’s daughter remained enrolled as a RCSBP beneficiary. Note: Petitioner elected RCSBP Spouse and Children coverage naming as the beneficiaries based on full gross pay level of coverage within 90-days of receiving NOE. Petitioner’s DD Form 2656, Data for Payment of Retired Personnel dated 19 February 2011 is amended to reflect “SBP Spouse and Child coverage” vice“SBP Spouse only coverage”. Note: This change is only authorized after the Petitioner garner’s approval from Navy Personnel Command (PERS-2D) to extend benefits to Petitioner’s incapacitated child. The decision is based upon the degree of incapacity as determined by the Bureau of Medicine and Surgery and whether or not the dependent meets the criteria established by Federal law. Petitioner must submit a request per directions outlined on https://www.mynavyhr.navy.mil/Support-Services/Pay-Pers_Support/ID-Card-Benefits. Petitioner may also contact the Navy Incapacitated Dependent Program Coordinator at (901) 874-3360/3319 for assistance. Additionally, Petitioner is required to coordinate with Defense Finance and Accounting Service to establish SNT as beneficiary. 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. 10/15/2021 Deputy Director