RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050005632


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 that she and her minor daughter be determined to
be eligible Reserve Component Survivor Benefit Plan (RCSBP) beneficiaries.

2.  The applicant states she is a disabled adult who lived with and was a
dependent of her father until the day he died.  Her daughter was also a
dependent of the applicant's father because he was given full legal custody
of her by the court due to the applicant's disability and the fact the
daughter's biological father is unknown.  The applicant applied for the
annuity upon the death of her father and was approved for herself and her
daughter.  Recently, however, the Defense Finance and Accounting Service
(DFAS) told her they were paid in error.

3.  The applicant states her father enrolled in the RCSBP in 1979.  She is
listed as a beneficiary.  The DD Form 1883 (Survivor Benefit Plan Election
Certificate) states dependent children over the age of 22 can be
beneficiaries if they are disabled.  It also states, "participation in this
survivor benefit plan is a permanent and irrevocable decision."  Therefore,
she thinks that it could not have been revoked by the FSM in 1999.  In
addition, he continued to pay RCSBP premiums until the day he died.

4.  The applicant states that, at the time her father opted out of the
RCSBP in October 1999, he was not yet aware of the fact she would be
finally deemed disabled by the State.  She includes a letter from her
doctor indicating she has had her illness and disability since she was 16
years of age.  Due to the progression of her illness, it was necessary for
her father to take legal custody of her daughter in November 2001. Again,
that was something he was not aware of in October of 1999.

5.  The applicant provides the death certificate of her deceased father, a
former service member (FSM); her birth certificate; her daughter's birth
certificate; a     30 July 2003 letter from the Social Security
Administration; an Order of Custody; a DD Form 2790 (Custodianship
Certificate to Support Claim on Behalf of Minor Children of Deceased
Members of the Armed Forces); a 17 February 2005 letter from DFAS; a
Retiree Account Statement; the FSM's DD Form 1883; a DD Form 2828
(Physician Certificate for Child Annuitant); a doctor's letter dated 8 June
2004; and copies of three social security cards.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 5 October 1937.  After having had prior enlisted
service, he was commissioned on 5 February 1961.  He would have received
his notification of eligibility for retired pay (his 20-year letter) around
1977.

2.  On 12 August 1979, the FSM completed a DD Form 1883.  In Section II
(Marital, Dependency, and Election Status), he indicated he was not married
and requested children-only RCSBP coverage, full base amount, option C.  In
Section III (Family Information), he listed four children in item 15 (I
have the following unmarried dependent children under age 22 (or over age
22 and incapable of self-support because of a disability incurred before
age 18 or, after age 18 but before age 22 while attending school)).  The
applicant was listed as the youngest child, born on 17 May 1964.

3.  The FSM turned age 60 on 5 October 1997 and became eligible to draw
retired pay.

4.  On 22 October 1999, the FSM elected to terminate his participation in
the SBP.

5.  On 21 June 2002, the FSM was awarded primary physical custody of the
applicant's daughter (born on 26 May 1999) and joint (with the applicant)
legal custody of her daughter.

6.  By letter dated 30 July 2003, the Social Security Administration
informed the applicant they had awarded her [disability] Supplemental
Security Income.

7.  The FSM died on 18 April 2004.

8.  The applicant apparently applied for the SBP annuity based on the FSM's
custody of her daughter.

9.  DFAS initially paid the SBP annuity to the applicant on behalf of her
daughter. When it was discovered, around January 2005, that the FSM had
terminated his enrollment in the SBP, payments were stopped and action was
taken to collect an overpayment of entitlement.  The applicant's daughter
is listed as the annuitant on DFAS's 17 February 2005 letter to the
applicant.

10.  The applicant provided a letter from her physician, who certified the
applicant had been diagnosed with Major Depression Recurrent Severe and
Panic Disorder with Agoraphobia, conditions which were first evident when
she was about 16 years old.
11.  The applicant provided copies of three social security cards – one for
her daughter and two for herself (one with her maiden name and one with her
married name).  She annotated beside the one with her married name that she
had divorced in 1990 and kept her married name.

12.  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.  Elections are made by category, not by name.  Elections are
permanent and irrevocable except as provided for   by law.  An Open Season
was established from 1 October 1978 through              3 September 1979
and later extended to 31 March 1980.

13.  Public Law 105-85, enacted 18 November 1997, established the option to
terminate SBP participation.  Retirees have a one-year period, beginning on
the second anniversary of the date on which their retired pay started, to
withdraw from the SBP.  No premiums will be refunded to those who opt to
disenroll.  Reservists who elected an option under the RCSBP will continue
to have the Reservist Portion cost deducted from their retired pay.  The
effective date of termination is the first day of the first calendar month
following the month in which the election is received by the Secretary
concerned.

14.  Title 10, U. S. Code, section 1452(b)(3) states, in the case of an
RCSBP participant who provided child-only coverage during a period before
the participant becomes entitled to receive retired pay, the retired pay of
the participant shall be reduced by an amount prescribed to reflect the
coverage provided during the period before the participant became eligible
for retired pay and is made without regard to whether there is an eligible
dependent child during a month for which the reduction is made.

15.  Title 10, U. S. Code, section 1447(11) defines “dependent child” as a
person who is (1) unmarried; and (2) who 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 existing before the person’s 18th birthday or incurred
on or after the 18th birthday but before the 22d birthday while pursuing a
full time course of study or training; and (3), who 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.

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


17.  Comptroller General decision 65 Comp. Gen. 767, dated 1986, concerned
mainly the issue of whether a child beneficiary lost eligibility for an SBP
annuity because of marriage.  It noted parents' responsibility to support
their children ordinarily ceases when the children reach the age of
majority, unless a child remains incapable of self-support because of
physical or mental infirmity.  A valid marriage contracted at any time by a
child terminates the parents' responsibility to support the child, however,
since the marriage creates relations inconsistent with that responsibility.
 The courts have generally held also that this "emancipated" status of a
child who marries is unaffected by a subsequent divorce, so that the
parents' responsibility of support is not renewed upon the child's divorce.
 Hence, the Comptroller General concluded that as a general rule a child
who lost SBP annuity eligibility due to marriage could not regain
eligibility upon the termination of that marriage through divorce.
However, if the marriage was annulled instead of terminated by divorce,
then SBP annuity eligibility could be reinstated if the annulment rendered
the marriage void or invalid.

DISCUSSION AND CONCLUSIONS:

1.  SBP elections are made by category, not by name.  In Section II of the
DD Form 1883, the FSM made his RCSBP election of child-only coverage.  His
listing of the applicant and his other children in Section III was not
directly related to his RCSBP election in Section II.

2.  The applicant contended RCSBP/SBP elections are permanent and
irrevocable.  That is true except as provided for by law.  In November
1997, Congress established the option to terminate SBP participation, and
the FSM took advantage of that option in 1999.

3.  It is true the FSM continued to pay RCSBP child-only costs (but not
standard SBP child-only costs) until he died.  However, the FSM did so
because the law requires such costs to be paid for the period of protection
before he became eligible for retired pay and not because he was paying for
current coverage.

4.  The letter from the applicant's physician certifying she had been
diagnosed with Major Depression Recurrent Severe and Panic Disorder with
Agoraphobia, conditions which were first evident when she was about 16
years old, has been considered.  However, she provides no evidence to show
she was incapable of self-support prior to reaching age 18 (or age 22 if
she was attending school).  The legal requirement is to be incapable of
self-support, not just to have a physical or mental incapacity.  More
importantly, the applicant indicated she had married and divorced.  Once
she entered into a valid marriage, she lost SBP annuity eligibility and
could not regain eligibility upon her divorce.

5.  Nevertheless, it appears reasonable to presume the FSM had no idea in
1999 that, only a few years later, the applicant would become so
incapacitated the court would award him joint legal custody and primary
physical custody of the applicant's young daughter.  It would be
compassionate to correct the FSM's records to show he did not request
termination of his enrollment in the SBP in October 1999.  This correction
would allow DFAS to reinstate the SBP on behalf of the applicant's daughter
effective the date of the FSM's death.  SBP costs from October 1999 through
the date of the FSM's death will have to be collected.

6.  There is insufficient evidence to show DFAS awarded the SBP annuity to
both the applicant and her daughter and not just to her daughter (but paid
to the applicant on behalf of her minor daughter).  If DFAS did so, it
appears it was done contrary to Comptroller General rulings.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__wdp___  __tmr___  __rjf___  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 partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

     a.  showing the FSM did not request termination of his SBP in October
1999 but continued to remain enrolled in the SBP for child-only coverage;

     b.  collecting any SBP costs due; and

     c.  paying to the applicant's daughter (or to the applicant on behalf
of her minor daughter) the SBP annuity retroactive to the date of the FSM's
death.
2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
determining the applicant is an eligible SBP beneficiary.




                                  __William D. Powers___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005632                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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