MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002067029

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 records of her grandson’s deceased father, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for children coverage and that her grandson be granted the annuity.

APPLICANT STATES:  That on 28 October 1997, a DNA test proved that the FSM fathered her grandson.  He never provided child support.  He had completed his Survivor Benefit Plan Election Certificate, DD Form 1883, in March 1996 and stated that he had no dependent children.  Based on the DNA test, this form should have been re-accomplished showing that he had a dependent child. She was granted legal custody over her grandson and is in need of financial assistance.

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

He was born on.  After having had prior service in the U. S. Army Reserve, he enlisted in the Army National Guard on 8 January 1983.  

The FSM’s Record of Emergency Data, DD Form 93, dated 9 February 1992, shows that he was married (not to the grandson’s mother) and that he had one child (born on  and apparently living with its mother, not the FSM’s wife).  The applicant’s grandson was born on 5 February 1985.  

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 12 January 1996.  His Servicemen’s Group Life Insurance Election and Certificate SGLV-8286, dated 24 January 1996 shows his mother and sister as beneficiaries.  His DD Form 1883 is dated 12 March 1996.  On this form he checked that he was not married and had no dependent children.  He declined to participate in the RCSBP by checking “none” rather than by selecting option A.  He did not list any dependent children in item 15.  

On 28 October 1997, the Laboratory Corporation of America, Burlington, NC determined that there was a 99.67 percent chance that the FSM was the applicant’s grandson’s father.

On 1 May 1998, the FSM was discharged from the Army National Guard and transferred to the Retired Reserve.

On 25 October 2001, the FSM died.  His death certificate shows his marital status as divorced.

On 31 December 2001, the Retirement Services Noncommissioned Officer of the Tennessee Army National Guard provided a statement in support of the applicant.  She stated that she feels the FSM was not informed as to how to change his DD Form 1883 in the event of a change in dependency status and that a new DD Form 1883 should have been accomplished shortly after the DNA test was completed.

In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, U. S. Army Reserve Personnel Command.  That office recommended approval of the applicant’s claim based on compassion, that the claimant be provided the annuity from the date of the FSM’s death, and that the Defense Finance and Accounting Service be directed to withhold whatever payments were required.  

A copy of the advisory opinion was provided to the applicant for comment.  She concurred with the advisory opinion.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 
whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If a member dies before age 60, the premiums for options B and C are deducted from the annuity.

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

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; and 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.

Title 10, U. S. Code, section 1450(a)(3) provides that dependent children are paid the SBP annuity in equal shares.

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

1.  The Board is empathetic with the applicant’s situation, but it appears that her grandson is not an eligible beneficiary for the RCSBP annuity under the statutory definition of “dependent child.”  There is no evidence to show her grandson ever lived with the FSM in a regular parent-child relationship.

2.  In addition, the Board recognizes that the FSM made errors on his DD Form 1883.  However, even if he did not know that the applicant’s grandson was his child at the time he completed the form in March 1996, he clearly knew he had another child.  Yet, it appears that he emphatically declined dependent children coverage at that time.  The later discovery that the applicant’s grandson was his child would not have enabled him to elect children coverage since he had already declined such coverage.  

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

_RVO___  ___JPI__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002067029	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.