IN THE CASE OF: BOARD DATE: 12 July 2021 DOCKET NUMBER: AR20210008014 APPLICANT REQUESTS: in effect, correction of his records to show his incapacitated granddaughter (now adopted daughter) as the beneficiary of his Survivor Benefit Plan (SBP). 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) * Certification of Vital Record, 16 October 2003 (F____) * Judicial Circuit Court Letters of Guardianship of Person and Property of Minor, 18 November 2010 (F____) * County Circuit Court Letters of Co-Guardian Advocates of Person and Property, 25 January 2013 (F____) * Pepin Academy Special Diploma, 5 June 2014 (F____) * Judicial Circuit Court Final Judgment of Relative Adult Adoption, 6 May 2020 (S____) * Defense Finance and Accounting Service (DFAS) letter, 10 August 2020 FACTS: 1. The applicant states: a. DFAS denied his request to have his adopted daughter listed as a beneficiary on his SBP. DFAS noted, "SBP coverage for a disabled child can only be elected while the child is eligible for SBP coverage. Children lose eligibility upon turning age 18 if not attending higher education. A child over the age of 18 cannot be added to SBP after due to ineligibility for age." He requests overturn of the DFAS decision and correction of his records to add his daughter S____ as a beneficiary of his SBP. b. His adopted daughter/granddaughter S____ (formerly F____) has been living with him since 2010 at the age of 15. He was not aware that he could add her as an SBP beneficiary until he called DFAS in June of 2020 to have her name changed due to the adoption. At that time, DFAS informed him that since his initial election for SBP was for "Spouse/Dependents," he could add his adopted daughter as an SBP beneficiary. It was at their initial recommendation that he requested the addition, only to later have it denied. c. In November 2010, he and his wife were granted guardianship of their granddaughter, to ensure she could attend Pepin Academy in Tampa, FL. Pepin Academy is a school for children with disabilities who require special academia. They also applied for and were approved for her inclusion into the Defense Enrollment Eligibility Reporting System. d. On 25 January 2013 when F____ was 19 years old, he and his wife were appointed as her guardian-advocates. She was still in Pepin Academy and would graduate with a special diploma in June 2014. She continued to attend the Pepin Academy Transition Program after graduation. This program is a comprehensive individualized program of vocationally based training in conjunction with life and job readiness courses, designed for young adults ages 18 to 22. She aged out of the program in 2017 at the age of 23. In May 2020, he and his wife adopted S____ (formerly F____) who is now their daughter for all intents and purposes. They feel, as responsible parents, that they must do everything possible to ensure their daughter's well-being in the future. 2. The applicant's records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), 3 February 1993, showing he requested retired pay, which he verified with his signature and a witness's signature on 3 February 1993. a. Part V (SBP Election) shows in: (1) item 14, he placed an "X" in the "Yes" block to the question, "Are you married?"; (2) item 14a, he placed an "X" in the "Yes" block to the question, "Do you have dependent children?"; (3) item 14b, he placed an "X" in the "No" block to the question, "Is/are child(ren) incapable of self-support because of a mental or physical incapacity?"; (4) item 15b (Spouse and Dependent Children), he placed an "X" in the block indicating the type of coverage he desired; (5) item 16, he placed an "X" in the block "Reduced Amount" and specified in writing the amount of $391.00 as his level of coverage for the annuity; and (6) item 17a (Name of Spouse/Former Spouse – Last, First, Middle), he entered "S____, " and noted his dependent children as a daughter, "S____, ," with a birth year of. b. Part IV (Certification) shows his wife V____ J. S____ agreed with his reduced coverage with her signature on 3 February 1993. 3. The applicant retired on 31 July 1993 and was placed on the Retired List effective 1 August 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in the rank/grade of master sergeant/E-8. 4. The Certificate of Vital Record, issued 16 October 2003, shows F____'s birth year as 1994 and parents as F____ (father) and S____ (mother). 5. The Judicial Circuit Court Letters of Guardianship of Person and Property of Minor, 18 November 2010, granted the applicant and his wife as co-guardians of their granddaughter F____, a minor and with the voluntary consent of her mother S____ and father F____ (should read F____), on 18 November 2010. 6. The County Circuit Court Letters of Co-Guardian Advocates of Person and Property, 25 January 2013, granted the applicant and his wife as co-guardian advocates of F____, a developmentally disabled person, specific powers and authority on 25 January 2013. 7. The Pepin Academy Special Diploma, 5 June 2014, certified F____ satisfied the requirements of graduation from high school on 5 June 2014. 8. The Judicial Circuit Court Final Judgment of Relative Adult Adoption, 6 May 2020, granted the applicant and his wife legal custody of F____ on 6 May 2020 and further granted her name change to S____. 9. The DFAS letter, 10 August 2020, informed the applicant DFAS could not process his SBP request for the following reason: SBP coverage for a disabled child can only be elected while the child is eligible for SBP coverage. Children lose eligibility upon turning age 18 if not attending higher education. A child over the age of 18 cannot be added to SBP after due to ineligibility for age. 10. The email correspondence from a DFAS pay technician (Reply: Army Board for Correction of Military Records (ABCMR) Assistance), 29 June 2021, notes the applicant has spouse and child coverage, which the child aged off in 1997 and the coverage changed to "Spouse Only" as a result. It further noted the DFAS database contains the following documents: a. the applicant's original DA Form 4240, 3 February 1993, showing his election of spouse and dependent children with reduced amount level of coverage; b. a letter from the applicant to DFAS, 25 June 2020, requesting approval of an enclosed DD Form 2656-6 (SBP Election Change Certificate) authorizing the addition of his adopted daughter as a beneficiary of his SBP; c. his DD Form 2656-6, 26 June 2020, which he verified with his signature and a notarized witness's signature, showing the following entries in: (1) item 7 (My Current Coverage Is), he placed an "X" in the block "Spouse and Child"; (2) item 8 (I Am Requesting a Change in Coverage Based on), he placed an "X" in the block "Acquiring a Dependent Child"; (3) item 9 (Place an X in the Appropriate Box to Indicate Your Election), he placed an "X" in the block "Resume Existing Coverage"; (4) item 11a (Spouse's Name – Last, First, Middle Initial), he entered "S____, "; and (5) item 13a (Child's Name – Last, First, Middle Initial), he entered "S____, " as his daughter; and (6) item 13e (Disabled?), he placed a "Y" in the block. d. The attachments included court documents and medical evidence as supporting documents. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the available documentation, the Board found that the granddaughter (now adopted daughter) appears to meet the requirements of a "dependent child” as described in 10 U.S.C. § 1447(11). Pursuant to AR 600-8-7, Retirement Services Program (18 January 2017), paragraph 5-3b(4), if a Retired Soldier who elected child SBP coverage at retirement acquires a child after retirement, the child becomes a beneficiary when a legal parent-child relationship is established. Therefore, the Board recommended granting the requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :XXX 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 the applicant changed his SBP election to child coverage on 12 May 2020 (immediately after adopting his disabled granddaughter) and the request was received and processed by the appropriate office in a timely manner. 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. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law. 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage. 3. Title 10, U.S. Code, section 1447, defines "dependent child" as a person who is: (1) unmarried and (2) under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday or incurred on or after the 18th birthday but before the 22nd birthday while pursuing a full time course of study or training; and (3) the child of a person to whom the plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008014 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1