MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000                   
	DOCKET NUMBER:   AR1999028168

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that she receive the retired pay of her deceased spouse, a former service member (FSM), retroactive to 4 March 1996.

APPLICANT STATES:  That the FSM became brain dead on 4 March 1996.  She has attempted since then to have his retired pay sent to her to support herself and her two children.  Other members of his family took his checks and cashed them.

EVIDENCE OF RECORD:  The FSM's military records show:

He enlisted in the Regular Army on 29 February 1972.  On 26 June 1973, he was placed on the Temporary Disability Retired List (TDRL).  He apparently was single at the time.  He was permanently retired by reason of physical disability in 1975.

The FSM and the applicant married in November 1984.

On 10 September 1996, the applicant informed the U. S. Army Finance and Accounting Center that the FSM was estranged from her and their two children.  He was a patient diagnosed as brain dead and was living on life support.  Since his hospitalization she had not been paid support.  She requested an apportionment of his checks.

On 21 December 1998, the Defense Finance and Accounting Service (DFAS) informed the applicant’s Congressman that once their Office of General Counsel appointed a trustee his pay would resume.  She was not a candidate for trustee since she was separated from the FSM.  She also did not have a garnishment or wage assignment against his retired pay account; therefore, when his pay resumed it would go to his care.  They had no legal authority to make deductions from a retiree’s pay account without his consent.

On 21 January 1999, the FSM’s sister applied for trusteeship.  It was approved by DFAS.

On 21 February 1999, the FSM died.  

On 25 May 1999, the Veterans’ Service Department, Bakersfield, CA provided a statement that the FSM and the applicant were separated only because he was brain dead and in the hospital in Los Angeles while she resided in Bakersfield.

The Department of Defense Financial Management Regulation, paragraph 160203, states that because of the variety of county and state statutes regarding appointment of legal representatives for physically incapacitated members, DFAS accepts and processes court orders appointing such representatives.  It is not the responsibility of DFAS to authenticate each order.  Paragraph 160401 states that the authority of the Secretary of the Army to appoint trustees without the necessity of official action has been delegated to the Director, DFAS.  Paragraph 160404 states that the Military Department trustee must use the monies received for the benefit of the incompetent retiree.  Paragraph 160405 states that the designated trustee must submit accounting reports annually or at such times as directed by the Military Department.  The reports must show all funds received and all expenditures made in behalf of the incompetent retiree.

On 27 January 2000, DFAS confirmed that the FSM had been on the point of being put out of the hospital when his sister was appointed trustee and all disbursed monies were expended on his hospital care.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  DFAS had no obligation to appoint the applicant the FSM’s trustee whether or not they were separated due to marital problems or due solely because he was hospitalized.  Their obligation was to appoint the person best able to care for an incompetent retiree’s needs because all monies disbursed in such cases are to be used for the benefit of the retiree.  Since the applicant indicated she wanted a portion of his retired pay to care for her and the children and since the FSM’s retired pay was required to pay his unpaid hospitalization bills, DFAS made the decision that she was not the best person to care for his needs.  The Board concludes this was the appropriate decision as all disbursed monies were used to pay his hospitalization debts.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rgh___  __bje___  __jps___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028168	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.