DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1324-16 MAY 1l 2017 From: Chairman, Board for Correction ofNaval Records To: Secretary ofthe Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) NPC memo dtd 29 Jun 16 (3) NPC ltr (Notification ofEligibility) 1820 Pers-192/yb dtd 5 Nov 07 (4) NPC ltr (Retirement Order) 1820 Pers-912/amr dtd 7 Dec 09 (5) Hospital letter/Medical records ICO (6) NPC ltr 1750 PERS-31D dtd 8 Aug 14 1. Pursuant to the provisions ofreference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that he elected Reserve Component Survivor Benefit Plan (RCSBP) "child only" coverage for his incapacitated dependent. 2. The Board, consisting reviewed Petitioner's allegations oferror and injustice on 16 March 2017 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence ofrecord. Documentary material considered by the Board consisted ofthe enclosures, naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the pepartment ofthe Navy. b. On . See enclosure (1). c. On 5 November 2007, Petitioner received his Notice of Eligibility to Participate in the Reserve Component Survivor Benefit Plan. He did not reply to the letter within the required 90 days and, therefore, should have been automatically enrolled in "child only" coverage. See enclosures (1) and (3). d. Petitioner retired with pay on 25 November 2009. See enclosure (4). e. On 21 August 2014, Petitioner's son was deemed incapacitated by the U.S. Navy and issued a dependent military identification card. Medical records, however, indicate that the son has been incapacitated prior to age 18. See enclosures (5) and (6). f. Public Law 113-291 ofDecember 2014 established that a service member could elect SBP coverage for an incapacitated dependent child (who is "disabled" as defined in 42 U.S.C. § 1382c(a)(3)) and direct payment ofthe SBP annuity to a SNT rather than to the individual outright. g. On 29 June 2016, Navy Personnel Command provided an unfavorable advisory opinion to bthe BCNR which indicated: "The documentation provided the address the question ofhis son's educational history (between ages 18 and 22), employment history during that same timeframe, both ofwhich are determining factors as to ifhe is/was incapable of self-support because ofa mental or physical incapacity which existed priorto his eighteenth birthday or was incurred on or after that birthday, but before his twenty-second birthday, while pursuing a full-time course of study or training." See enclosure (2). CONCLUSION Upon review and consideration ofall the evidence ofrecord, the Board concludes that . Petitioner's request warrants favorable action. The Board carefully weighed the observations made in enclosure (2), however, the Board felt that the evidence provided by the Petitioner demonstrated the existence ofan injustice warranting corrective action. The Board relied heavily on the following: it has been the Board's experience that reservists receive insufficient or inaccurate RCSPB counseling about their entitlements and the impact of designating or not designating a minor child as incapacitated. Until recently, the RCSBP annuity could only be paid directly to an annuitant rather than to a trust. The Board noted that receiving an annuity could put an inc·apacitated child in a worse financial position than they would have been had they not received the annuity. The Board concluded that had the law allowed the RCSBP annuity to be directed to a SNT at the time ofthe Subject's transfer to the Fleet Reserve, he would have designated his child as incapacitated on the RCSBP election form. The Board determined that the record clearly indicates that the child was incapacitated prior to age 18, incapable of selfsupport, and has never been married. Finally, the Petitioner should have been automatically enrolled in "child only" coverage after 90 days from his receipt of his Notice ofEligibility letter. Accordingly, the Board concluded that the record should be changed to show that the Petitioner elected "child only" RCSBP child coverage for his incapacitated dependent at the time ofhis retirement. RECOMMENDATION That Subject's naval record be corrected, where appropriate, to show that: a. Within ninety (90) days ofreceipt of the Notification ofEligibility (NOE) to Receive Retired Pay at Age 60 letter dated 5 November 2007, Petitioner elected maximum "child only" RCSBP coverage, Option C, designating the child as incapacitated. Any other election or declination executed by Subject is null and void. b. Petitioner is responsible for unpaid RCSBP/SBP costs that would have been deducted since ninety (90) days ofreceipt ofthe NOE. No waiver ofunpaid premiums will be granted. c. A copy ofthis Report ofProceedings will be filed in Petitioner's naval record. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction ofNaval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record ofthe Board's proceedings in the above entitled matter. 5. The foregoing action ofthe Board is submitted for review and approval.