ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF: 

		BOARD DATE:  13 September 2019

		DOCKET NUMBER:  AR20170017837


APPLICANT REQUESTS:  through counsel, correction of his DD Form 2656-6 (Survivor 
Benefit Plan (SBP) Election Change Certificate) to reflect "Spouse and Children" 
instead of "Spouse Only."

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Executive Summary, Applicant, undated
*	Brief in Support for Records Correction, Counsel, undated
*	Exhibit 1 – Affidavit, dated 12 November 2017
*	Exhibit 2 – Letters of Guardianship for an Incapacitated Person, Commonwealth 
of, The Trial Court, Probate and Family Court, dated 14 July 2015
*	Exhibit 3 – Report of Neuropsychological Evaluation, General Hospital, dated 
31 October 2013
*	Exhibit 4 – DD Form 2656-5 (Reserve Component Survivor Benefit Plan 
(RCSBP) Election Certificate, dated 25 November 2014

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) 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 defers to counsel.

3.  Counsel states:

	a.  The applicant's oldest daughter is diagnosed with mild to moderate intellectual 
disability and an autistic spectrum disorder.  She is permanently disabled and has been 
under court-appointed guardianship since July 2015.

	b.  The applicant made an erroneous selection on his DD Form 2565-5 that would 
cause his family a significant amount of hardship.  He seeks to reconcile this error to 
ensure that his family is properly cared for.

	c.  The applicant's intent for his SBP annuities to pass to his daughter are evident by 
his entry in block 16 (Remarks) of the DD Form 2565-5, which discusses a special 
needs trust for adult dependent children.  The National Defense Authorization Act for 
Fiscal Year 2015 also included a provision to allow for SBP annuities to be paid into an 
SNT for adult children.  Current law prohibits SBP from being paid into a trust.

	d.  The applicant has been married to his wife since 26 June 1993.  He and his 
spouse have two children.  One of his daughters requires specialized assistance in the 
classroom, speech and language therapy three times per week, and occupational 
therapy twice each week.

	e.  The applicant completed his DD Form 2526-5, dated 25 November 2014, and 
included the information for his wife and two daughters.

	f.  The applicant has been a stellar Soldier and officer for the past 23 years.

	g.  The applicant discovered this error while planning for the future.  He attempted to 
correct this error through the simplest means possible, but he was directed to the 
ABCMR for relief.

3.  The applicant was born on XX December 1965.

4.  He and his spouse were married on 26 June 1993.

5.  He was appointed as a Reserve commissioned officer in in the Army National Guard 
on 16 September 1994.

6.  On 6 October 2014, he received his Notification of Eligibility for Retired Pay for Non-
Regular Service (20 Years).

7.  His RCSBP Election Certificate, dated 25 November 2014, shows:

	a.  the instructions state:

The decision you make regarding participation in the Reserve Component 
Survivor Benefit Plan (RCSBP) is very important.  A decision to participate, that 
is to select either Option B or C, is permanent and cannot be changed unless 
authorized by law, such as the opportunity to terminate your participation during 
the period that ls between your 62nd birthday and the day before you reach 
age 63 at which time you may elect to discontinue participation.  A decision to 
decline RCSBP coverage means you will not have another opportunity to select 
SBP coverage until age 60.  In the event you decline RCSBP coverage and die 
prior to your 60th birthday, no survivor benefits will be paid.  Please review the 
program details carefully and consider the effects of your decision before making 
an election.  You must submit this form within the 90-day period after being 
notified of eligibility for retired pay at age 60.  If you do not submit this form as 
required, your election, if any, will be determined by law.

	b.  in Section III (Spouse/Dependent Child(ren) Information), he listed his spouse 
and two dependent daughters and noted his eldest daughter, was disabled;

	c.  in Section IV (Coverage), block 12 (Options), he indicated "Option C (Immediate 
Annuity";

	d.  in Section IV, block 13 (Type of Coverage), he indicated "Spouse Only";

	e.  in Section VI (Insurable Interest Coverage), block 15 (Insurable Interest 
beneficiary), he named his spouse; and

	f.  in Section VIII (Remarks), he entered:

The Senate National Defense Authorization Act for FY15 [Fiscal Year 2015] bill 
also includes a provision to allow for Survivor Benefit Plan annuities to be paid 
into a Special Needs Trust for adult dependent children.  Current law prohibits 
SBP from being paid into a trust.  This can result in disabled dependent children 
being ruled ineligible for essential needs-based government aid because of their 
SBP income.  If the law changes in the future and the opportunity is presented it 
would be my intent to make a special needs trust for my disabled daughter [as] 
the beneficiary.

8.  He is currently serving as a member of the Army National Guard.

9.  He will reach age 60 on XX December 2025.

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, the Board found that full 
relief was warranted.  The applicant elected spouse only RCSBP coverage when he 
received his 20-year letter.  At that time, he noted his intent to provide coverage for his 
disabled daughter provided that SBP income could be paid into an SNT if the law were 
to change in the future.  The law did change, but after he had submitted his RCSBP 
election.  The Board agreed that the evidence supports correcting the record to show 
the applicant elected spouse and child(ren) RCSBP coverage.  

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 the evidence presented is 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 chose 
Reserve Component Survivor Benefit Plan coverage type "Spouse and Child(ren)." 
 
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, 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 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.
2.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, 
provided a way for those who qualified for Reserve retirement but were not yet age 60 
(and eligible to participate in SBP), to provide an annuity for their survivors should they 
die before reaching age 60.  Three options are available:  (A) elect to decline 
enrollment and choose at age 60 whether to start SBP participation; (B) elect that a 
beneficiary receive an annuity if they die before age 60 but delay payment of it until the 
date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity 
immediately upon their death if before age 60.  If death does not occur before age 60, 
the Reserve Component SBP costs for options B and C are deducted from the 
member's retired pay (costs for option C being the more expensive).  Once a member 
elects either Options B or C in any category of coverage, that election is irrevocable.  
Option B and C participants do not make a new SBP election at age 60.  They cannot 
cancel SBP participation or change options they had in RCSBP – it automatically rolls 
into SBP coverage.  If Reserve Component SBP Option B or C is elected, there is a 
Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit 
and assured protection should the member have died prior to age 60.

3.  Public Law 113-291, enacted 19 December 2014, gave military members and 
retirees the option to direct payment of a SBP annuity for a dependent child to an SNT.  
An SNT is a legal instrument specifically designed for the benefit of a person with a 
disability.  In some cases, this may preserve the beneficiary's eligibility for other Federal 
or State benefits.
ABCMR Record of Proceedings (cont)	AR20170017837


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