IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130009805 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the son of a deceased former service member (FSM), requests reconsideration of an earlier request for payment of a Survivor Benefit Plan (SBP) annuity to him, as a disabled adult, based on the death of his father and mother, the beneficiary of the FSM's SBP annuity.

2.  The applicant states:

	a.  He requests receipt of survivor benefits because he is permanently disabled.  Correspondence received from this agency on 14 May 2012 states his case would be reopened if he could supply his medical records.  He was able to obtain his medical records.

	b.  He was admitted to the hospital on 4 September 1952 from an orphanage and remained in the hospital for 2 years.  He was discharged on 24 May 1954 and diagnosed with acute spinal poliomyelitis (commonly known as polio).  He was given extensive physical therapy while in the hospital, learning how to walk and how to perform other functions he would need in everyday life.

	c.  After his discharge, he spent time with five different foster parents.  His father always criticized him, physically struck him, was very strict with discipline, and showed no great affection toward him.

	d.  The guiding force, support, and encouragement for him came from his late step-mother Grace.  She never held him back despite his disability.

	e.  Toward the end of his father's life the tables changed and he helped his father out.  In November 2003, his father lost his kidneys and went for dialysis treatments three times a week.  He was appointed as his father's power of attorney (agent) to handle his bills and other functions.

	f.  He doesn't think his father considered having a handicapped son (applicant) and who would support his son upon his passing when he elected spouse coverage.  It was an extreme error in judgment on his part.

	g.  He is fortunate to get around utilizing leg braces and crutches and is not confined to a wheelchair.

3.  In his original application, he stated he relied on social security disability payments as well as his father's annuity payment.

4.  The applicant provides:

* medical records
* power of attorney
* photographs of himself and his family
* mother's death certificate
* letter from a Member of Congress, dated 10 May 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021436 on 10 May 2012.

2.  The applicant provided numerous medical records which show:

* on 24 May 1954, at age 2, he was diagnosed with spinal poliomyelitis, recovered with residual paralysis in muscles of both legs
* he walked with braces on both lower limbs
* at age 7, he was diagnosed with a mental deficiency
* he underwent physical therapy as a child

3.  These medical records are new evidence that warrant consideration by the Board.

4.  The FSM was born on 5 November 1910.  He married the applicant's birth mother Jane on 12 February 1944.

5.  The FSM was appointed as a second lieutenant in the Army of the United States and entered active duty on 14 August 1942.  He was honorably released from active duty on 4 October 1946.

6.  The applicant was born on 7 September 1952.

7.  The FSM was appointed as a Reserve commissioned officer on 16 September 1952.

8.  The applicant's mother, the FSM's spouse at that time, died on 26 August 1953.  The applicant stated he contracted polio at age 2.  

9.  The FSM married Grace in 1957.

10.  The FSM served in a variety of assignments and he was promoted to lieutenant colonel (LTC) in the U.S. Army Reserve on 19 May 1961.

11.  The FSM was transferred to the Retired Reserve on or about 10 August 1964 and he was ultimately placed on the Retired List in the rank of LTC on 5 November 1970, his 60th birthday.

12.  Defense Finance and Accounting Service (DFAS) records show the FSM elected spouse SBP coverage on 1 October 1973.

13.  The FSM died on 20 September 2004.  His death certificate shows he was married to Grace at the time.

14.  On 18 February 2005, the FSM's spouse, Grace, submitted a DD Form 2656-7 (Verification for Survivor Annuity) verifying her entitlement to the FSM's SBP annuity.  Upon receipt of her application, DFAS established an annuity for her as the spouse.

15.  Grace, the FSM's widow and applicant's step-mother, died on 26 January 2006.

16.  On 23 February 2009 after reviewing the FSM's retired pay account, DFAS Retired and Annuity Pay advised the applicant that DFAS determined the FSM elected spouse coverage, children excluded, on 1 October 1973.  Additionally, there was no documentation of the applicant's incapacitation.  As such, the account closed upon notification of the beneficiary's death.

17.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  It declared a 12-month open enrollment season for those members who retired prior to enactment of the law.

18.  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 years of age 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 22nd birthday while pursuing a full time course of study or training; and (3) who is the child of a person to whom the SBP 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows:

* the FSM elected SBP spouse-only coverage in 1973
* the FSM died on 20 September 2004
* the FSM's widow died on 26 January 2006 and upon her death the SBP annuity stopped

2.  The applicant contends he wants survivor benefits because he is permanently disabled and relies on social security disability payments.

3.  Notwithstanding the fact he was diagnosed with polio at age 2, there is no evidence and he provides no evidence which shows he was incapable of self-support before age 18.  He contends he was appointed as the power of attorney to handle bills, make bank deposits, and other functions when his father became ill.  He also states he is fortunate to get around utilizing leg braces and crutches and is not confined to a wheelchair.  All these factors point to a relatively high level of function despite his polio.

4.  The FSM did not elect SBP coverage for spouse and children.  There is no evidence which shows the applicant was incapable of self-support because of a mental or physical incapacity which existed before age 18 or that the FSM made anything other than the knowing choice he was authorized to make and which he intended to make.  More importantly, even if the applicant were incapable of 
self-support the FSM was never required by law to elect SBP coverage for the applicant's benefit.  Accordingly, there is insufficient evidence on which to base granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110021436, dated 10 May 2012.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130009805



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ABCMR Record of Proceedings (cont)                                         AR20130009805



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