RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 October 2007
      DOCKET NUMBER:  AR20060015367


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Ann M. Campbell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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
his disabled child was enrolled in the Defense Enrollment Eligibility
Reporting System (DEERS) and TRICARE during the period he was called to
active duty from 7 October 2004 through 15 January 2005.

2.  The applicant states, in effect, that when he was called to active duty
his Basic Allowance for Quarters (BAQ) was stopped and he was told to apply
for DEERS to be covered by TRICARE.  He claims he thought he and his family
were enrolled in these systems while he was in a Reserve status and that
his handicapped daughter was covered no matter how old they were.  He
states that his wife and daughter were totally disabled before they died
and his daughter had been that way since she was a child, and his Reserve
unit was aware of this situation.  He claims that when he arrived in
Kuwait, his November 2004 Leave and Earnings Statement (LES) again showed
he was receiving no BAQ and he went to finance to resolve this situation.
He was informed that he would have to fill out request for dependency
status (DA Form 137) in order to enroll his daughter in DEERS and TRICARE
and he submitted this request on
28 December 2004.

3.  The applicant states that while awaiting a reply on his request, his
daughter died from her disease on 15 January 2005, after he had been in the
overseas theater for 3 months.  He indicates that he had private insurance
and Medicaid health insurance to help with his daughter's bills; however,
he had no life insurance due to her pre-existing condition and he had to
pay the remainder of the bills that were not paid by his private and
Medicaid health insurance.

4.  The applicant also states that during his deployment, he did not
receive an answer to his dependency request, but he let it go because he
was told it would take time.  A whole year went by and he needed to check
on the bills he submitted so he notified TRICARE of his situation in March
2006; however, he again got no answer from the Defense Finance and
Accounting Service (DFAS) on his request.  He states that he left Kuwait in
June 2006 and when he arrived at Fort Benning, Georgia, he again tried to
get information concerning his application for TRICARE and DEERS for his
daughter.  The DEERS office at
Fort Benning explained that his daughter could not be eligible until DFAS
made a decision on her dependency status and he resubmitted his request to
DFAS by FAX.

5.  The applicant states that after resubmitting his request, DFAS informed
him that they had received his request in January 2005, and replied to him
at his address in the United States.  He provided DFAS his new address and
then received two notices stating he was denied due to his not paying 50
percent of the bills for his daughter while she was in the care of the
Christian City Nursing Home.  He states it is his belief that since he had
private and Medicaid health insurance, there was no way that he would pay
50 percent of her medical bills; however, he was still responsible for any
remaining balance on those bills.  The DEERS office informed him he would
need a letter or something indicating he should have been eligible for
TRICARE and DEERS due to being called to active duty from his Reserve
status.

6.  The applicant provides the 27 documents identified in paragraph 9 of
his statement to the Board in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he served on active duty from 4 April
1978 through 31 August 1981, at which time he was honorably separated and
transferred to the United States Army Reserve (USAR).  He has continuously
served in the USAR in various capacities through the present.

2.  The applicant's mobilization history shows that he has been mobilized
in support of Operation Iraqi Freedom since 7 October 2004, and has
remained on active duty since.  The last active duty order issued is
Headquarters, United States Army Human Resources Command (HRC) Orders
Number A-07-618130, dated 17 July 2006, which directed the applicant's
retention on active duty at
Fort Benning, Georgia, effective 13 July 2006, for an additional 179 days.
The purpose of this active duty extension was a voluntary medical holdover
for completion of medical care and treatment.

3.  On 30 January 2003, a representative of the Christian City Convalescent
Center notified the applicant's unit by letter that the applicant's
daughter was a resident at that center, which is a 24 hour skilled nursing
facility and that she was residing there full time.  It further confirmed
that Medicaid was her primary payer and that they covered her room and
board, medications and nursing supplies.  It further indicated that the
applicant covered additional expenses.  They concluded that they expected
the applicant's daughter to stay there on a permanent basis.

4.  On 28 December 2004, the Army Central Command (ARCENT) Finance Officer,
Kuwait, submitted Dependency Statement-Incapacitated Child Over
Age 21 (DD Form 137-5), and on 15 January 2005, the applicant's daughter
died.

5.  On 14 September 2006, the Defense Finance and Accounting Service
(DFAS), Army Military Pay Operations, Dependency Branch, determined
dependency had not been established for the applicant's daughter, because
the applicant's contribution was less than 50 percent of expenses.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Services Branch, HRC-Alexandria.  This
official stated that after a thorough review of the documents provided by
the applicant, there was no documentation showing that the DFAS granted
dependency for the applicant's daughter.  He further stated that DFAS is
the only agency that can grant dependency and that a Soldier's Dependent
Eligibility Enrollment Record System (DEERS) record is updated upon
approval of dependency.  He further indicated that DFAS documents contained
in the packet confirm the applicant request for dependency was denied
because he was not providing 50 percent of his daughter's expenses.

7.  On 15 March 2007, the applicant provided a rebuttal to the HRC advisory
opinion.  He stated that he was a single parent at the time he was
mobilized in October 2004, and he had no choice other than to place his
daughter in a nursing home, knowing that he would be called to active duty.
 He states that had it not been for the fact he was being activated, he
would not have had to place his daughter in a nursing home and his Reserve
unit was aware of his situation and had his family care plan in order.  He
states that DEERS indicates only DFAS can determine dependency status, but
his family was on DEERS while he was in a Reserve status and was only
removed when he was mobilized.  He states he was unaware of the steps for
keeping DEERS up-to-date for a handicapped member who was bed-ridden and
could not move outside the home.  He claims he was told to be prepared for
deployments way back in 2002 and 2003, and that he had to get his family
care plan in order, and this is why he placed his daughter in a nursing
home.  He states that before entering the nursing home, his daughter relied
on him for every need and she remained his dependent after she entered the
nursing home.  He asks that his full application with enclosures be
reviewed and that he be granted the requested relief.

8.  Army Regulation 600-8-14 provides the policies for the issue of
Identification (ID) cards and establishing dependency.  Table 4-5 and Table
4-6 contain the eligibility criteria for issuing an ID card and
establishing dependency for incapacitated children over Age 21.  It states,
in pertinent part, that the child must be dependent on the sponsor for over
one-half of his or her support.

9.  The Federal Joint Travel Regulation (FJTR), Chapter 10, contains the
policies and procedures for payment of Housing Allowances.  Paragraph
U10106 states, in pertinent part, that the statutory purpose of a housing
allowance on behalf of a dependent is to at least partially reimburse a
member for the expense of providing private quarters for the dependents
when Government quarters are not furnished, and are not to pay a housing
allowance for a dependent as a bonus merely for the technical status of
being married or a parent.

10.  Paragraph U10108 of the FJTR states, in pertinent part, that an
incapacitated child over age 21 requires an in fact dependency established
in accordance with the Service regulations.  The child must be dependent
upon the member for over half of the child's support.  This means the
child's income, not counting the member's contributions, must be less than
one-half of the child's living expenses; and the member's contribution must
be more than one-half of the child's monthly living expenses.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's daughter was
permanently residing in the Christian City Convalescent Center from at
least 30 January 2003, which was more than 9 months before the applicant
entered active duty.  It further confirms that Medicaid was the primary
payer and covered her room and board, medications and nursing supplies,
while she resided at this center.

2.  By law and regulation, in order to establish dependency for an
incapacitated child over the age of 21, the member must establish that
he/she is responsible for over one-half of the child's support.  In this
case, although there is no question the applicant's daughter was
incapacitated and the applicant was providing additional expenses, Medicaid
was providing well over one-half of living expenses for the applicant's
daughter.

3.  Although the applicant's situation is unfortunate and his request for
relief is understandable, the policies and procedures governing dependency
status for an incapacitated children over Age 21 are well established and
account for circumstances such as the applicant experienced.  As a result,
it would not be appropriate or in the interest of all those who faced
similar circumstances to grant the requested relief in this case.

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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __JCR___  __AMC__  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.




                                    __Ann M. Campbell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/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.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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