MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April 2000
	DOCKET NUMBER:   AR1999031352

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 his brother be recognized as a military dependent.

APPLICANT STATES:  That he provides his brother 100 percent support, that he is his brother’s legal guardian, and that he has been unable to convince anyone that his brother must be his military dependent.  He has explained his situation in several letters (Bureau of Naval Affairs, DFAS, and his senator).  He cannot prove that his brother has been mentally handicapped since birth (he was severely jaundiced at birth and suffered some brain damage from hypoxia).  He tried to recover his brother’s medical records from Whidbey Island Naval Hospital in February 1999, but the patient affairs clerk said that all dependent medical records prior to 1970 were destroyed.  He cannot afford to have him evaluated at a civilian facility (he has already exhausted his family’s savings having his brother evaluated and paying legal fees to obtain guardianship).  He doesn’t know why his parents, both deceased, didn’t keep his brother’s medical records.  

A 12 May 1998 psychological assessment report from the Greater Lakes Mental Healthcare, Lakewood, Washington, which the applicant submits in support of his request, states that it is quite clear that his brother has many of the skills necessary to live independently.  A Wechsler Adult Intelligence Scale (WAIS) test showed the applicant’s brother to have a full scale IQ of 95, and is well within the normal range of adult intellectual abilities.  The intellectual data indicated that he has all the requisite intellectual skills to live on his own.  A Personality Assessment Inventory (PAI), along with clinical interview, indicated that he is not suffering from any significant mental illnesses, but strongly indicated that he is a man who is uncomfortable in social settings and probably is a loner.  The report concluded that the applicant’s brother has many of the basic skills necessary to become independent.  He can do all of his own self-care and many of the community living activities necessary to be on his own.  However, he lacks money management skills, has not held anything but minimum employment, and currently has no means of financial support other than to live with family.  The applicant’s brother presents him as a person who is functionally incompetent to manage his own affairs.  He has the basic abilities to become functional in these areas, but needs an opportunity to learn the skills and gain the competence necessary to carry out these activities.  It is quite reasonable that he be placed under his brother’s guardianship to cover financial and some health care decision making.  There is no reason to assume he cannot become independent in the future.  However, he is currently not able to do that for lack of experience and necessary skills.

In support of his request, the applicant submits copies of his brother’s birth certificates and high school transcripts; the Greater Lakes Mental Healthcare psychological assessment report referred to above; a State of Washington court decree appointing him as his brother’s guardian effective 12 August 1998; an application for dependent ID card and DEERS enrollment, including DA Forms 1172 and 5639-R, dated 26 February 1999; a 12 March 1999 denial of dependency status from the Defense Finance and Accounting Service (DFAS); an 18 March 1999 denial for medical benefits from the Navy Personnel Command; and a letter to his senator dated 14 April 1999.

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

The applicant is an active duty major presently attending Command and General Staff College at Fort Leavenworth, Kansas.  His previous duty station was Fort Lewis, Washington.

On 12 August 1998, while serving at Fort Lewis, the Superior Court of the State of Washington appointed the applicant as the guardian of the person and estate of his brother, born on 5 January 1960.

On 26 February 1999, the applicant applied through the Fort Lewis Dependency Entitlement Office for a Uniformed Services Identification Card and DEERS Enrollment for his brother.  His basis for application was that he had been appointed by the Washington Superior Court to be his brother’s guardian.  His application went into detail to state that his brother attended special education classes and graduated from high school on a remedial level.  Throughout his life, his brother had lived with their mother.  His dependent ID card expired in 1981, and for reasons unknown to the applicant, his mother never requested an ID card extension.  When his mother became terminally ill in 1998, the applicant brought his brother to Fort Lewis to live with him.  The Fort Lewis commander granted an exception to policy and allowed the applicant’s brother to reside on post in government housing while the applicant sought guardianship of his brother.  The applicant went on to state that his brother has no medical or dental insurance, no income or job skills, is not capable of driving a car, and he provides 100 percent financial support to his brother.

On 24 March 1999, DFAS disapproved dependency for the applicant’s brother, as he does not satisfy the statutory requirements for eligibility.

Army Regulation 600-8-14, Identification Cards for Members of the Uniformed Services, establishes policy and outlines procedures for issuing military ID cards for service members and their dependents.  The definition of “dependent” for ID card purposes was changed by legal statute on 1 July 1994 to include a ward of a service member.  A ward is an unmarried person who is placed in the custody of the member by a court of competent jurisdiction.  In order to be eligible, the statute requires that the person either has not attained the age of 21, or age 
23 and is enrolled in a full time course of study at an institution of higher learning approved by the administering Secretary, or is incapable of self support because of a mental or physical incapacity that occurred while the person was considered a dependent of the member or former member.  

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 applicant’s brother was 38 years of age at the time the State of Washington appointed the applicant guardianship of his brother.  The statute is clear in that a ward of a service member must be under the age of 21, or age 23 if a full time student, or is incapable of self support because of an incapacity that occurred while that person was considered a dependent of the service member.

2.  The applicant’s brother was not his dependent when either a mental or physical incapacity occurred rendering him incapable of self support.  By the applicant’s own admission, his brother lived with and was the dependent of his mother until he attained the age of 38 years in 1998.

3.  Notwithstanding the State of Washington’s decision to appoint the applicant guardianship over his brother, the applicant has not convinced the Board that his brother is incapacitated to the degree which qualifies him for dependency status as an exception to policy.

4.  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.

5.  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

__eb____  __tap____  __klw___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031352	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.