MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 March 2001                   
	DOCKET NUMBER:   AR2000049871

	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.

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

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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:  That the disabled children of her deceased son, a former service member (FSM), be granted an annuity under the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That the FSM’s daughter D___ is in a nursing home with Hunikins Disease (sic) and his daughter L___ has had mental problems from her birth and lives with the applicant (the daughter’s grandmother).  She provides no evidence regarding the children’s medical conditions.

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

He retired on 1 May 1975 after completing 20 years of service.  His Record of Emergency Data, DA Form 41, showed that he was single with no children.  In completing both a Survivor Benefit Plan – Election Certificate, DD Form 1883, and a Data for Payment of Retired Army Personnel, DA Form 4240, he checked that he was not married and had no children and declined to enroll in the SBP.

D___ was born on 10 September 1978.  Although her birth certificate shows that someone other than the FSM was her father, an 8 January 1980 Admission of Paternity found that the FSM was the father of D___ and also of M___, born on 21 December 1976.

L___ was born on 20 May 1980.  Her birth certificate shows someone other than the FSM as her father and no Admission of Paternity is provided that finds the FSM was her father.

The FSM died on 18 November 1995.  He was not paying SBP premiums at the time of his death.

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.

Public Law 97-35, enacted 12 August 1981, established a second open enrollment period from 1 October 1981 – 30 September 1982.  Public Law     101-189, enacted 29 November 1989, established an open enrollment period to be conducted from 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the open enrollment period to     1 April 1992 – 31 March 1993.

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.  The FSM never enrolled in the SBP.  At the time he retired he was single with no children.  He could have enrolled in the SBP after his children were born and after paternity for at least one of them was established during the 1981 - 1982 or the 1992 – 1993 open enrollment periods but he failed to do so.

2.  The Board also notes that there is no evidence to show that L___ was legally found to be the FSM’s child.  There is also no evidence to show that either child meets the criteria to be determined to be “dependent.”  In addition, since the FSM never paid for the SBP there is no annuity to grant.

3.  Regrettably, 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

__slp___  __jpi___  __rks___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000049871	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.