ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20160019631 APPLICANT REQUESTS: her adult sister receive a Survivor Benefit Plan (SBP) annuity based on her incapacitation since birth APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Her sister’s birth certificate * Various medical documents regarding her sister * Her father’s death certificate * Current identity documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she has a mentally incapacitated sister, X__ X__, who she is caring for now that both of their parents are deceased. It is her understanding that her father did not indicate that he had a mentally incapacitated child who could not care for herself and therefore did not elect the proper SBP coverage upon retirement in 1985. She is sure it was just an oversight on his part. Maybe the fact that he suffered from alcoholism played a part in the oversight or maybe he was not given all the facts he needed in relationship to the SBP coverage to make an informed decision. She does believe that he thought he had something in place for her sister, because he told them he did and that if anything happened to him and their mother, X__ X__ would be taken care of through the Defense Finance and Accounting Service (DFAS). 3. The applicant provides: a. A Department of State Foreign Service of the United States of America “Certification of Birth” showing X__ X__ was born in . b. Various medical documents from the John F. Kennedy Institute (an affiliate of Johns Hopkins University and the Johns Hopkins Hospital), including a “Discharge Summary”, dated 1 February 1980, describing X__ X__’s cognitive and communication deficits. c. A State of South Carolina “Certificate of Death” showing her father died on 9 June 2012. d. A copy of her driver’s license and a copy of X__ X__’s DD Form 1173 (Identification and Privilege Card), which shows X__ X__ remains entitled to all benefits associated with her status as her deceased father’s dependent child. 3. A review of the applicant’s father, a FSM service record shows: a. He was inducted into the Army of the United States on 5 October 1965 and continued his service thereafter through a series of immediate reenlistments. b. On 9 August 1985 he completed a DA Form 4240 (Data for Payment of Retired Army Personnel). With respect to his SBP election, applicant’s father indicated he was married, he had three dependent children all of whom were minors and at least one of whom was incapable of self-support because of a mental or physical incapacity, and that he wanted SBP coverage based on the full amount of his retired pay for his dependent children only. Applicant’s mother signed the reverse of the form concurring with his election. c. He retired for length of service effective 1 November 1985. 4. Records obtained from DFAS show: a. On 8 October 1999, applicant’s parents informed DFAS that she, their youngest child, would be attending college. Presumably, this letter was triggered by a notification from DFAS that child SBP coverage would terminate upon applicant’s eighteenth birthday or graduation from high school. b. An undated card sent by DFAS to applicant’s father informed him that SBP child coverage would terminate effective 1 July 2004 based on applicant’s age and status as a student. c. The reverse of the card, which is titled “Age 18 Notice—SBP Child Coverage Information” contains box checks and a note which indicate that applicant had graduated and was not incapacitated and that there was an older child, X__ X__ who was incapacitated. d. The last two lines of the form state “If you have an incapacitated child and you have not submitted a doctor’s/official’s statement which provides the nature, extent of, and date the incapacity commenced, please obtain this statement and return it with this card.” e. There is no evidence DFAS received this information. f. There is no evidence DFAS expended any effort to reach out to applicant’s father in order to obtain the missing information and reconcile the patent inconsistency in his file with respect to his SBP coverage prior to discontinuing premium deductions from his pay. g. The SBP child premium involved amounted to $4.41 per month as of the date of applicant’s father’s retirement. 5. Publically available records indicate the applicant’s mother died in August 2016. 6. By law, X__ X__, if otherwise qualified, became entitled to a child annuity under SBP not upon her mother’s death, but upon her father’s death four years prior. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant contentions were carefully considered. Evidence of record shows the FSM consistently recorded there is an older incapacitated child when making SBP elections. The Board agreed that the incapacitated beneficiary should have received payments upon the FSM’s passing. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 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 properly elected the Survivor Benefit Plan (SBP) for his incapacitated child, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the payment of any unpaid SBP premiums upon his death on 9 June 2012. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1447, defines various terms related to the Survivor Benefit Plan (SBP). It states, in pertinent part, that the term “dependent child” means a person who is unmarried, under eighteen years of age, at least eighteen but under twenty-two years of age and pursuing a full-time course of study or training at a recognized educational institution, or is incapable of self-support because of a mental or physical incapacity existing before the person’s eighteenth birthday or incurred after that birthday, but before the person’s twenty-second birthday, while pursuing a full-time course of study or training, and is the child of a person to whom the Plan applies. 3. Title 10, USC, section 1450, discusses payment of the SBP annuity. It states, in pertinent part, that effective as of first day after the death of a participant in the Plan, a monthly annuity under section 1451 of this Title shall be paid to the person’s beneficiaries under the Plan as follows: (1) the person’s eligible surviving spouse or eligible former spouse, (2) the surviving dependent children in equal shares, if the eligible surviving spouse or eligible former spouse is dead, dies, or otherwise becomes ineligible, (3) dependent children in the event of an election of child only coverage with spousal concurrence, (4) natural person with an insurable interest. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019631 4 1