RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 October 2004
      DOCKET NUMBER:  AR2004100662


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr, Paul M. Smith                 |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record be corrected to show
he elected spouse and children Reserve Component Survivor Benefit Plan
(RCSBP) coverage.

2.  The applicant states, in effect, that he requests his daughter be
included in his retirement benefits.  He claims his daughter was born with
a chronic illness (cystic fibrosis), which was diagnosed later in life.
The applicant also indicates that he was informed he should take this
action in order for his daughter to be included in his retirement benefits
and to be eligible for military medical benefits.

3.  The applicant provides a supporting letter from his daughter’s doctor
at the Children’s Hospital, Boston, Massachusetts, in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record confirms he was appointed a second lieutenant in
the United States Army Reserve (USAR) on 25 May 1968.  He served on active
duty between July 1968 and July 1970 and continuously served in the USAR
through 1989, at which time he gained retirement eligibility.

2.  The applicant’s record contains a Notification of Eligibility for
Retired Pay at Age 60 (Twenty-Year Letter), dated 5 February 1990.  This
letter notified him that he had completed the required years of service and
was eligible to receive retired pay upon application at age 60.  It also
informed him he had 90 calendar days to submit his RCSBP election
certificate (DD Form 1883).

3.  On 10 October 1989, the applicant completed his DD Form 1883.  In
Section II (Marital, Dependency, and Election Status), he indicated that he
was married and had dependent children.  He elected to participate in the
RCSBP with “Spouse Only” full coverage under Option C (Immediate Coverage).

4.  In connection with the processing of this case, an advisory opinion was
obtained from the Supervisor, Retirements and Annuities Branch, Transition
and Separations Branch, Human Resources Command (HRC), St. Louis, Missouri.
 This retirement official confirms that upon receiving his Twenty-Year
Letter, the applicant completed his RCSBP election form by electing “Spouse
Only” full coverage under Option C (Immediate Coverage).

5.  The HRC advisory opinion further indicates that the RCSBP protection
provided by the election made in connection with the Twenty-Year Letter is
only acceptable until the soldier reaches his/her 60th birthday.  Upon
reaching age 60 and applying for retired pay, the RCSBP becomes only the
SBP.

6.  The HRC retirement official further states that the applicant applied
for retired pay by submitting an Application for Retired Pay (DD Form 108).
 In his retirement packet, the applicant provided a Data for Payment of
Retired Personnel (DD Form 2656), which confirms he will reach age 60 on 4
May 2005. In this form, he elected “Spouse and Children” full SBP coverage.
 He also indicated that one of his daughters, who was born on 25 June 1975,
was disabled and he provided a supporting doctor’s statement confirming her
status.  Given this information, this retirement official recommends the
application be approved and the applicant’s DD Form 1883 be changed to show
he elected “Spouse and Children” SBP coverage.

7.  The applicant was provided a copy of the HRC advisory opinion in order
to have the opportunity to respond and on 15 March 2004, he concurred with
its contents.

8.  The applicant provides a letter from his daughter’s doctor at the
Children’s Hospital, Boston, Massachusetts.  It indicates that the
applicant’s daughter is currently receiving health benefits under the
applicant’s policy.  The doctor states it came to his attention that in the
event of the applicant’s retirement or death, the daughter would be left
uninsured.  The doctor further states the applicant’s daughter suffers from
a genetic disease (Cystic Fibrosis) that is incurable and has a median life
expectancy of 31 years.  Finally, he requests that any considerations that
would allow her to remain under her father’s policy as a disabled dependent
would clearly benefit her greatly.
9.  A member of the Board staff contacted the physician who provided the
statement referred to in the preceding paragraph in order to determine the
date the applicant’s daughter was diagnosed with her current condition.
The doctor stated the date of diagnosis was in June 1991 and that the
method of diagnosis was a sweat test.  The doctor also indicated that he
believed the applicant had moved to the west coast, but the daughter was
still residing in New Hampshire.

10.  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 RCSBP 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.  Normally an election, once made, is irrevocable except as provided for
by law.

11.  Eligible children who are covered under a Spouse and Children SBP
election get benefits only if the spouse has died or remarried before age
55.  Children qualify for payments only during the time they are unmarried
and: under age 18; or over age 18, but under age 22 and still in school
full time; or suffer a mental or physical incapacity incurred while still
eligible as defined (Under age 18, or over age 18, but under age 22 and
still in school full time).  There are no provisions for providing SBP
benefits to children who become physically incapacitated after exceeding
the basic eligibility ages.

12.  Army Regulation 600-8-14 (Identification Cards for members of the
Uniform Services, their eligible family members and other eligible
personnel) provides the policy and procedures for issuing military
identification cards.  Paragraph 19.21 provides the initial application
procedures for incapacitated children over the age of 21, which includes a
dependency determination for medical care.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his SBP election from “Spouse Only”
to “Spouse and Children” was carefully considered and found to have merit.
By law, children who became physically or mentally incapacitated while in
an eligible status (under age 18, or over age 18, but under age 22 and
still in school full time) are eligible to receive SBP benefits.  The
evidence shows the date of birth of the applicant’s daughter is 25 June
1975 and that she was diagnosed with her current condition in June 1991, at
age 16.  As a result, she might qualify for SBP coverage under the
incapacitation rules outlined in the governing law.

2.  In view of the facts of this case and given the HRC recommendation, it
would be appropriate and serve the interest of compassion and equity to
correct the applicant’s record to show his 10 October 1989 DD Form 1883
RCSBP coverage election was “Spouse and Children”.  The applicant is
advised that even with this correction to his SBP election, his daughter
will only receive a SBP monetary benefit if his spouse, her mother,
predeceases her or remarries before age 55.

3.  Although it has been determined that relief in this case is warranted
in the interest of equity and compassion, the SBP is funded by the election
premiums of those who are participating in the program.  As result, in the
interest of those who bear the cost of the program, it would appropriate
for the applicant to pay the difference in cost between his original Spouse
Only election premium and the Spouse and Children coverage he now seeks.

4.  It is noted that the doctor’s statement and the applicant’s own request
appear to be more directed toward medical benefits as opposed to SBP
coverage.  As a result, the applicant is advised that he may wish to follow
the guidelines in paragraph 19.21, Army Regulation 600-8-14, for initial
application for incapacitation of children over the age of 21, which
includes a request for a dependency determination for medical care.
BOARD VOTE:

_WTM___  _PMS___  _PHM __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by amending his 10 October 1989 Survivor Benefit Plan Election
Certificate
(DD Form 1883) by deleting the current Spouse Only election in Number 8 and
replacing it with the “Spouse and Children” election.

2.  That the Defense Finance and Accounting Service collect the difference
in all Survivor Benefits Plan premiums due beginning on 10 October 1989
based on the change of his election from Spouse Only to Spouse and
Children.




            _WALTER T. MORRISON_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100662                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]