IN THE CASE OF:  BOARD DATE: 25 April 2023 DOCKET NUMBER: 20220008635 


APPLICANT REQUESTS: correction of her DD Form 2656 (Data for Payment of Retired Personnel), 25 September 2008, to show in: 

•item 25e (Disabled? (Yes or No) – Yes

•item 26 (Beneficiary Category(ies)) – "I Elect Coverage for Spouse andChild(ren)"



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

•Standard Forms 513, 29-30 July 1993

•Brooke Army Medical Center Hospital Discharge Summary, 4 August 1993

•Certification of Vital Records, 22 December 1997

•DD Form 2656, 25 September 2008

•Hilo Medical Center Letter, 27 February 2012

•Department of Veterans Affairs Rating Decision, 6 June 2012

•Superior Court Judgment – Dissolution, 16 September 2016

•Circuit Court Order Appointing Guardian with Unlimited Authority, 22 October2018

•Army Review Boards Agency Email (Change to DD Form 2656, block 25e),8 June 2022

•Former Spouse's Letter, 9 June 2022



FACTS: 

1.The applicant states:

a.Her DD Form 2656, 2 September 2008, contains two errors: item 25e anditem 26a. Her retirement counselor should have advised her to mark "Yes" in item 25e to indicate her child is "Disabled" and elect SBP coverage for "Spouse and Child(ren)" in item 26 instead of "Spouse Only." 

b.Her daughter has been disabled since birth and she is providing nine supportingdocuments to prove her daughter's disability. She was not properly advised by the Retirement Services Officer in 2008 that by electing "Spouse Only," she was denying her daughter TRICARE for Life. She had been assured repeatedly that due to her daughter's disabilities, she easily qualified for this coverage. She requests correction of this long-standing error. Once this correction is approved and filed in the system, she will submit the corrected copy to the Defense Enrollment Eligibility Report System (DEERS) for her daughter's renewed TRICARE coverage. 

c.She only recognized the error upon her recent review of the DD Form 2656 on6 June 2022. Her daughter is rightfully entitled to TRICARE for Life due to her easily provable disability. She requests correction of this error, which resulted in denial of her daughter's TRICARE coverage at age 22, and approval of SBP coverage for her disabled daughter in the interest of justice. 

d.In 2015 when her daughter reached 22 years of age, she was denied TRICAREcoverage without notice. She was never given an explanation other than that her daughter reached 22 years of age. This week she was reviewing the old documents when she discovered these errors on the DD Form 2656. She contacted the Defense Finance and Accounting Service and the representative told her these errors triggered her daughter's erroneous removal from TRICARE. 

e.She firmly believes she was not properly advised by her retirement counselor ofthe ramifications of the recommended elections on the DD Form 2656. There is no way she would have indicated her daughter is not disabled unless the "Spouse Only" SBP coverage was not encouraged. With a corrected DD Form 2656, her daughter can be enrolled in the SBP and reinstated in TRICARE. She is relieved to have finally discovered the errors that caused her daughter's erroneous removal from TRICARE and appreciates the Board's approval to correct this error in the interest of justice. 

2.She was serving in the Regular Army in the rank/grade of lieutenant colonel/O-5when she completed her DD Form 2656, 2 September 2008. This form shows in:

•item 14 (Marital Status) – she marked "Married"

•item 25 (Dependent Children) – she listed her daughter with a birthdate inJuly 1993 and marked "No," indicating the child was not disabled

•item 26 (Beneficiary Category(ies)) – she marked "I Elect Coverage for SpouseOnly" and indicated she has a dependent child

•item 27 (Level of Coverage) – she marked "I Elect Coverage with a ReducedBase Amount of $1,800.00"

•Section XI (Certification) – her signature, the signature of her witness, and herspouse's concurrence with the signature of a notary public



3.She retired on 30 November 2008. Her DD Form 214 (Certificate of Release orDischarge from Active Duty) shows she completed 23 years and 20 days of total activeservice.

4.Her Standard Forms 513, 29-30 July 1993; Brooke Army Medical Center HospitalDischarge Summary, 4 August 1993; Certification of Vital Records, 22 December 1997;and Hilo Medical Center letter, 27 February 2012; document her daughter's disability.

5.Her Department of Veterans Affairs Rating Decision, 6 June 2012, establishedpermanent incapacity for self-support for her daughter.

6.The Superior Court Judgment – Dissolution, 16 September 2016, granted herdivorce on 15 September 2016.

7.On 4 October 2016, she completed a DD Form 2656-6 (SBP Election ChangeCertificate), requesting to change her SBP election from "Spouse Only" to "SuspendCoverage" due to her divorce.

8.She provides a letter from her former spouse who states their daughter was bornwith trisomy twenty one. More commonly known as Down Syndrome, her conditionpermanently disables her. He fully admits to making a mistake in signing the SBPelection as her spouse where I indicated by checking a box that the child was notdisabled. He would have corrected this earlier but he just became aware of the mistake.

9.SBP coverage of an incapacitated child is a separate issue from TRICARE coveragefor an incapacitated child. If a child is severely disabled or incapacitated, the child mayreceive TRICARE coverage beyond the normal age limits.

10.The DEERS enrollment and identification (ID) card issuance process consists ofseveral steps to ensure the correct ID card is issued and the appropriate benefits andprivileges are assigned. Family members can be enrolled at any Real-Time AutomatedPersonnel Identification System site if the person being added or requesting ID cardissuance is a legitimate child, incapacitated and over age 21. The person shouldprovide the following additional documents to establish relationship and eligibility:

•Birth Certificate

•Medical Sufficiency Statement

•Financial Dependency Determination







BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, her military records, and regulatory guidance were carefully considered. The evidence of record shows in connection with her December 2009 retirement, the applicant made a reduced base amount spouse only SBP coverage, and indicated she has a dependent child who was not disabled. In October 2016, she requested to change her SBP election from "Spouse Only" to "Suspend Coverage" due to her divorce. She contends her SBP election contains two errors: Her retirement counselor should have advised her to mark "Yes" to indicate her child is "Disabled" and elect SBP coverage for "Spouse and Child(ren)" instead of "Spouse Only." The Board did not find evidence that the applicant and her then-husband were coerced by a retirement counselor into misidentifying their child as not being disabled. The Board also noted that the applicant’s former spouse provides a statement indicating he mistakenly checked a box that their daughter was not disabled. This statement from the former spouse admits that he (and by extension, the applicant also) mistakenly checked a box indicating their daughter was not disabled. The former spouse’s specific language is, “I fully admit to making a mistake….” A mistake is far different from a decision that is coerced or a decision that is deceptively induced. Thus, the Board found no error in this case. As for an injustice, the applicant asserts that her daughter is ineligible for Tricare for Life due to her (the applicant’s) misidentifying the daughter as not disabled on the SBP form. But this assertion appears groundless. SBP coverage of an incapacitated child is a separate issue from TRICARE coverage for an incapacitated child. If a child is severely disabled or incapacitated, the child may receive TRICARE coverage beyond the normal age limits.  

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XX XX: XX: DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 


Microsoft Office Signature Line...



REFERENCES: 

1.Public Law 92-425, enacted 21 September 1972, established the SBP. The SBPprovided that military members on active duty could elect to have their retired payreduced to provide for an annuity after death to surviving dependents. An election, oncemade, was irrevocable except in certain circumstances. Elections are made bycategory, not by name. The election must be made before the effective date ofretirement or coverage defaults to automatic spouse coverage. Since its creation, it hasbeen subjected to a number of substantive legislative changes.

2.Department of Defense Instruction 1332.42 (SBP) establishes policy, assignsresponsibilities, and provides procedures for administration of the SBP Program,Reserve Component SBP Program, Special Survivor Indemnity Allowance, and SBPAdvisory Group. Paragraph 6.1 (Dependent Children) states a dependent child is thechild of the member covered by SBP who is unmarried and either: over 18 years of agebut incapable of self-support because of a mental or physical incapacity existing beforethe person's 18th birthday or incurred on or after that birthday but before the person's22nd birthday while pursing such a full-time course of study or training.

3.The Defense Finance and Accounting Service website for Army SecondaryDependency Claims provides links to forms, instructions, and guides necessary to claimsecondary dependents by category, to include incapacitated child(ren) (21 years orover).

4.The National Defense Authorization Act for Fiscal Year 2023 includes an SBP openseason. The SBP open season began on 23 December 2022 and ends on 1 January2024.

a.The SBP open season allows for retirees receiving retired pay, eligible members,or former members awaiting retired pay who are currently NOT enrolled in the SBP or Reserve Component SBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). For retirees receiving pay, enrollment requires paying the premiums plus interest for the period since the date they were first eligible to enroll, as well as the monthly premiums moving forward. 

b.The SBP open season also allows eligible members and former members whoare currently enrolled in either the SBP or Reserve Component SBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. 
5.DEERS is a computerized database of military sponsors and eligible family memberswho are entitled to benefits under the law, such as medical care, post exchangeprivileges, and commissary privileges, among other benefits. Informing sponsors aboutSBP updates is not the responsibility of DEERS registration duties.

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