PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000041714

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his daughter be determined to be an eligible beneficiary of his Survivor Benefit Plan (SBP).

3.  The applicant states that his daughter has had Down’s Syndrome since her birth on 29 July 1970.  He provides two doctor’s statements verifying her medical condition and evidence to show that he and his wife requested appointment as his daughter’s plenary guardian in 1990.

4.  The applicant’s military records show that he was commissioned and entered active duty on 16 April 1959.  He retired on 1 October 1980.  At that time he elected to participate in the SBP for spouse and child coverage.  He had listed two sons and one daughter (all three under age 18) as dependents.  

5.  On 9 March 1990, the applicant and his spouse applied for guardianship of his daughter by reason of the severity of her mental retardation that rendered her totally unable to meet essential requirements for her physical health or safety and totally unable to make informed decisions about matters related to her care.  

6.  A 26 July 1991 doctor’s statement notes that the applicant’s daughter suffers from a genetic illness with mental retardation (Down’s Syndrome).  A 19 April 2000 doctor’s statement also notes the applicant’s daughter’s diagnosis of Down’s Syndrome and that she is both mentally and physically incapable of self-support.

7.  Public Law 92-245, 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.  The term “dependent child” means a person who is unmarried; is 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; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is 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. 

CONCLUSIONS:

1.  The applicant provides sufficient evidence to show that his daughter suffers from a medical condition that existed at birth and has made her physically and mentally incapable of self-support.  The Board concludes that his daughter meets the statutory definition of “dependent child.”

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by reinstating the applicant’s incapacitated daughter (date of birth      29 July 1970) as his SBP beneficiary retroactive to the date she was determined to be an ineligible beneficiary.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.

BOARD VOTE:  

__mdm___  __clg___  __ena___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041714	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.