MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2003087551

         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Lester Echols		Member
Mr. Lawrence Foster		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)

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APPLICANT REQUESTS: That the records of her deceased father, a former service member (FSM), be corrected to show that she had a physical disability which existed before her 18th birthday, thus entitling her to receive the Survivor Benefit Plan (SBP) annuity.

APPLICANT STATES: That the FSM enrolled in the SBP for spouse and children coverage. If the Board will undertake a search to compile and review her health records while she was a military dependent, it will become clear that her Systemic Lupus Erythematosus (SLE) began while she was under the age of 18.

COUNSEL CONTENDS: Counsel makes no additional contention.

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

After having had prior service, he entered the active Army as a commissioned officer on 25 October 1952. He retired on 1 April 1971.

On 30 March 1973, the FSM completed a USAFSA Form 2621 (Survivor Benefit Plan Election Certificate - by Existing Retiree) and enrolled in the SBP for spouse and children coverage, full base amount. At the time, he had three children. The applicant was the oldest, with a date of birth of 6 April 1958. All three children are listed in section III (children dependent because of a disability).

On 9 May 1979, the FSM died. His spouse became the SBP annuitant. His spouse died on 4 January 1999. As of July 1995, his spouse was still the SBP annuitant. The Defense Finance and Accounting Service (DFAS) does not currently have a record of her account.

In March 1999, the applicant applied for the SBP annuity. She had provided statements from two doctors, both statements dated 1999, indicating she had SLE. In July 1999, DFAS returned her application without action. They requested she provide a doctor's statement showing she was incapacitated prior the age of 18 or age 22 if she was a full time student.

In March 2000, the applicant resubmitted to DFAS with another statement from her primary physician. That statement, dated December 1999, indicated the applicant had ongoing episodes of SLE with joint pain, rash, and recurrent infection. It indicated that the physician had attended her for about 4 years, that the condition began on an unknown date, and that in his opinion the applicant was incapable of self-support for an indefinite period.

The applicant further stated that she could remember having problems from a very early age with vague and unusual symptoms but no formal diagnosis was able to be made until 1996. In her early 20s, she was again suspected of having SLE but it was not confirmed at the time due to limited testing ability. Due to her ongoing condition, she had been unable to work and was a full-time dependent of her mother's until her mother's death.

On 21 April 2000, DFAS determined that the applicant was not entitled to the SBP.

Public Law 92-425, enacted 21 September 1972, established the SBP. The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity. Upon creation of the SBP, an 18-month Open Season was conducted from 21 September 1972 through 20 March 1974, in which all pre-1972 retirees were given the option to enroll.

Title 10, U. S. Code, section 1447(11) defines “dependent child” as 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 or is incapable of self-support because of a mental or physical incapacity (emphasis added) existing before the person’s 18th birthday.

Several Comptroller General decisions and Board of Veterans Appeals decisions have addressed the issue of what constitutes a "dependent child."

Comptroller General decision 65 Comp. Gen. 767, 1986 concerned mainly the issue of whether a child beneficiary lost eligibility for an SBP annuity because of marriage. However, this decision noted that parents' responsibility to support their children ordinarily ceases when the children reach the age of majority, unless a child remains (emphasis added) incapable of self-support because of physical or mental infirmity.

Other Comptroller General decisions allowed that the age limit to be used in determining incapacity could extend to age 22 provided the child was attending college-level schooling at the time.

Board of Veterans Appeals decision docket number 00-00-801 cites Title 38, U. S. Code. This decision noted that the law provides that an individual may be recognized as a "child" of a veteran on the basis of permanent incapacity for self-support at the date of attaining the age of 18 years. The decision noted that the phrase "permanent incapacity for self-support" contemplates that the individual has a totally incapacitating disability, which causes a permanent inability to support himself through his own efforts by reason of a physical or mental defect.

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 Board concludes that there is insufficient evidence to show the applicant met the statutory criteria to be determined eligible to receive the SBP annuity as a dependent child.

2. Title 10, U. S. Code defines a "dependent child" as an unmarried person who is incapable of self-support because of a mental or physical incapacity existing before the person’s 18th birthday. While some Comptroller General decisions have declared that the age limit could be extended to age 22 for an otherwise qualified child, the key phrase in all the decisions is "incapacity for self-support."

3. While Title 38, U. S. Code does not apply to SBP issues, at least one Board of Veterans Appeals decision appears to have expressly indicated the will of Congress on the issue of support for dependent children of veterans (including retired veterans). The cited decision noted that an individual may be recognized as a "child" of a veteran on the basis of permanent incapacity for self-support at the date of attaining the age of 18 years.

4. Again, the key phrase is "incapacity for self-support." This phrase is much more limiting than would be the phrase "an unmarried person who has a mental or physical condition existing before …"

5. The Board concludes that the listing of the applicant's name in section III of the USAFSA Form 2621 is insufficient evidence to show she met the statutory definition of a "dependent child." The Board notes that the FSM listed all three of his children in this section. The applicant and one other child were over the age of 22. Absent evidence to the contrary, the Board presumes the FSM did not understand only "dependent" children were to be listed in this section.

6. The Board is not an investigative agency. The burden and costs for researching and assembling documentation to support an application for a specific claim rests with the requester. Her Army medical records may have been forwarded to a records holding area. A DD Form 877-1 (Request for Medical/Dental Records from the National Personnel Records Center (NPRC) (St. Louis, Missouri)) is provided for her use. She should forward it to the 111 Winnebago Street address listed on the reverse of the form. She should understand that favorable consideration of the her case would require more evidence than just Army medical records showing she may have had SLE while a dependent child.

7. The applicant has provided no evidence to show she was incapable of self-support because of SLE or any other condition before the age of 18 (or 22). She herself indicated that she was a full-time dependent of her mother's until her mother's death. She does not state nor does she provide evidence to show she was a full-time dependent of her father, who died when she was 21 years old.

8. 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

__wtm___ __le____ _lf_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087551
SUFFIX
RECON
DATE BOARDED	20030626
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	137.01
2.
3.
4.
5.
6.