RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 11 October 2006
DOCKET NUMBER: AR20060003597
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. Beverly A. Young | |Analyst |
The following members, a quorum, were present:
| |Mr. Patrick McGann | |Chairperson |
| |Mr. David Gallagher | |Member |
| |Mr. Roland Venable | |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, as the father of the deceased service member (SM),
requests his daughter’s Survivor Benefit Plan (SBP) annuity.
2. The applicant states that his daughter was on active duty at the time
of her death and she had no spouse or dependent children. He states that
no one received the SBP annuity at the time of his daughter’s death. He
also states he is the next of kin.
3. The applicant provides an SGLV-8283 Form (Claim for Death Benefits); a
DD Form 1300 (Report of Casualty); the SM’s Certificate of Death; and the
SM’s Chronological Statement of Retirement Points.
CONSIDERATION OF EVIDENCE:
1. The SM was born on 24 January 1964. After having had prior enlisted
service, the SM was appointed as a Reserve commissioned officer on 20 May
1988, in the rank of second lieutenant.
2. The SM was ordered to active duty in an Active Guard Reserve (AGR)
status on 5 December 1993.
3. She was promoted to the rank of major on 19 June 2002.
4. The SM died on 3 December 2005 while she was serving on active duty in
an AGR status. The death certificate shows her marital status as divorced.
The applicant is identified as the father of the SM.
5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.
6. Public Law 107-107, enacted 28 December 2001, provided expanded
benefits under the SBP for the qualified survivors of eligible members who
die while serving on active duty. These benefits are effective for a death
on or after 10 September 2001. A qualified death under the provisions of
Title 10, U.S. Code, Section 1448(d), as amended by Public Law 107-107, is
a death of a member on active duty who died in the line of duty or who died
not in the line of duty but was retirement eligible.
7. Title 10, U.S. Code, section 1448(d)(6)(A) states that, in the case of
an eligible member who dies in the line of duty while serving on active
duty, the Secretary concerned may, if no other annuity is payable on behalf
of the member under this provision (i.e., if there is no eligible spouse,
child, or former spouse beneficiary), pay an annuity to a natural person
who has an insurable interest in such member. The Secretary concerned may
pay such an annuity under this paragraph only in the case of a person who
is a dependent of that member (as defined in section 1072(2) of this
title).
8. Title 10, U.S. Code, section 1072(2)(E) defines as a “dependent” a
parent or parent-in-law who is, or was at the time of the member’s or
former member’s death, in fact dependent on the member for over one-half of
his or her support and residing in the member’s household.
DISCUSSION AND CONCLUSIONS:
1. Title 10, U.S. Code, section 1448(d)(6)(A) is applicable in the case of
an eligible member who dies in the line of duty while serving on active
duty. The Secretary concerned may pay such an annuity under this paragraph
only in the case of a person who is a dependent of that member.
2. However, there is no evidence to show the applicant has met the
statutory definition of a dependent.
3. Regrettably, in view of the foregoing, there is no basis for granting
the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
PM______ DG______ RV______ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
Patrick McGann________
CHAIRPERSON
INDEX
|CASE ID |AR20060003597 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20061011 |
|TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
|DATE OF DISCHARGE |YYYYMMDD |
|DISCHARGE AUTHORITY |AR . . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |137.0000 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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