IN THE CASE OF: BOARD DATE: 7 June 2012 DOCKET NUMBER: AR20110024450 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a change of his Survivor Benefit Plan (SBP) election from "Spouse and Children" to "Spouse Only." 2. The applicant states he just learned through a Social Security forum that his disabled child would lose Social Security Supplemental Income (SSI) benefits if both he and his spouse predeceased their child based on her receipt of SBP. 3. The applicant provides a special needs information paper in support of his request. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant retired in the rank of colonel on 30 June 2005 after completing 26 years and 17 days of active military service. 3. The Defense Finance and Accounting Service (DFAS) record shows the applicant’s SBP election since retirement has been "Spouse and Children" full coverage. 4. The applicant provides a special needs information paper that indicates SBP payments are considered income for SSI purposes and if this income causes the child to lose SSI he/she would also lose Medicare coverage. Although still eligible for TRICARE, the loss of Medicare would result in the loss of long term support benefits. 5. Title 10, U.S. Code, section 1448 provides guidance on the application of the SBP. It states that an election once made is irrevocable once a person first becomes entitled to retired pay. Section 1455 of the law provides for the Secretary concerned to correct or revoke any election when the Secretary considers it necessary to correct an administrative error. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request to change his SBP election to full "Spouse Only" coverage due to the potential loss of SSI and Medicare benefits to his disabled child if predeceased by both parents has been carefully considered and found to have merit. 2. Although elections once made are normally irrevocable, the law does allow the Secretary concerned to correct or revoke any election when he/she considers it necessary to correct an administrative error. 3. In this case, it is clear that had the applicant been aware of the potential loss of benefits to his disabled child as a result of her being covered under his SBP election, he would have not made this election at the time of his retirement. As a result, it is reasonable to conclude there was an administrative error made in his election based on the lack of counseling on this matter at the time of his retirement. Given this error, it would be appropriate and serve the interest of justice and equity to correct the applicant’s record to show he elected full "Spouse Only" SBP coverage at the time of his retirement, and to reimburse him any amount of his premiums in excess of the cost of this "Spouse Only" election since the date of his retirement. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected full "Spouse Only" SBP coverage at the time of his retirement and by paying him all premiums collected in excess of the cost of "Spouse Only" coverage since the date of his retirement. ___________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110024450 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110024450 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1