PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 June 2002
	DOCKET NUMBER:   AR2002070492

	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	
	Ms. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 the records of her deceased father, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for children only coverage.

3.  The applicant states that her brother, Joe, was hit by a car in August 1976 when he was 14 years old.  He remained in a coma for over eight months and it took a few years to get him partially rehabilitated.  Their mother died in January 1999 and the FSM himself got very sick shortly thereafter.  The applicant moved back home to help tend the family.  The FSM died in February 2002.  Her brother has lots of medical problems and is 100 percent disabled.  He is not married and has never been married and probably will never marry.  The applicant will be the only one to take care of him.

4.  The FSM’s military records show that he enlisted in the Regular Army on      25 February 1948.  His Record of Emergency Data, DA Form 41, shows that one daughter was born in 1945, the applicant in 1950, and his son Joe in 1961.  He retired on 1 September 1974.  At that time, he declined to enroll in the SBP.

5.  The FSM’s son Joe was hit by a car in August 1976 and was diagnosed with brainstem contusion with quadriparesis and neurogenic bladder and mental dysfunction.  A medical history from the Rio Vista Rehabilitation Hospital in El Paso, TX indicates that he was wheelchair bound until around March 2001 when the applicant began to take care of him, helping him with his range of motion.  He became independent with the activities of his daily living.

6.  The FSM died on 12 February 2002.

7.  The FSM’s son Joe fell on 4 March 2002, which accident rendered him unable to walk again.

8.  Public Law 92-425, 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.

9.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. 

10.  Public Law 101-189, enacted 29 November 1989, established an           Open Season to be conducted 1 October 1991.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given in Army Echoes.

CONCLUSIONS:

1.  There is no evidence of Government error in this case and the FSM had three opportunities after his son’s accident to enroll in the SBP but for unknown reasons chose not to do so.  Nevertheless, it appears his son met the eligibility criteria to be considered a dependent child and, in his current circumstances, it appears that it would be compassionate to grant the relief requested.

2.  The Defense Finance and Accounting Service (DFAS) should make the actual determination if the FSM’s son Joe met the criteria to be an SBP annuitant.  They will probably require affidavits concerning his marital and employment status and possibly additional medical documents concerning his medical condition.

3.  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 showing that the FSM enrolled in the SBP on 1 October 1981 during the second Open Season and elected children only coverage, full base amount, and named his son Joe as a dependent child.

2.  That after the correction noted above is made, the applicant apply to DFAS for the SBP annuity on behalf of her brother if her brother is unable to do so himself.

3.  That the applicant be advised that DFAS will be instructed to collect any SBP costs due.

BOARD VOTE:  

__RVO__  __RWA__  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

	                                          ___Raymond V. O’Connor___
		     CHAIRPERSON

INDEX

CASE ID	AR2002070492	
SUFFIX		
RECON		
DATE BOARDED	2002/06/20	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.