BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140008888 


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 daughter of a deceased former service member (FSM), requests correction of the FSM's records to show she is eligible to receive a Survivor Benefit Plan (SBP) annuity.

2.  The applicant states that her mother (the FSM) died in 1990 and her father received a military annuity benefit.  Her father recently died and the annuity was stopped.

   a.  She states she is unable to work due to post-traumatic stress disorder.  Additionally, she suffers from manic depression, anxiety, migraine headaches, and severe panic attacks.

   b.  She requests, in effect, reinstatement of the SBP annuity based on being the biological child of the FSM and incapable of self-support because of mental or physical incapacity.  

3.  The applicant provides –

* the FSM's death certificate
* her father's death certificate
* her birth certificate, Social Security card, and driver license
* three medical documents


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard (ARNG) of the United States and Arkansas ARNG on 24 July 1980.  The FSM attained the rank of staff sergeant/pay grade E-6.

2.  A DA Form 4240 (Data for Payment of Retired Army Personnel) dated 
22 March 1990 shows in –

* Part III (SBP Election) –

* item 11 (Do you have dependent children?), an "X" in the "Yes" block
* item 11, block a (Is/are child(ren) incapable of self-support because of a mental or physical incapacity?), an "X" in the "No" block
* item 12 (Check one of the following to indicate the type of coverage you desire:), an "X" in the "Dependent children only" block
* item 13 (If you checked 12a, b, or c, do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay?), the coverage elected was based on her full retired pay

* it also shows the FSM was married to A____ L. R____ and she had one dependent child (the applicant) - A____ N. R____, daughter, date of birth:  16 January 1985
* the FSM's spouse (A____ L. R____) was listed as the beneficiary (100%) of unpaid retired pay
* the Retirement Services Officer (RSO) entered in item 19 (Signature of Member), "Soldier Not Available for Signature (Remarks)" and in the "Remarks" section, "22 March 1990, Soldier was terminally ill and [a] patient in Barnes Hospital, St. Louis, MO, and not expected to live without a liver transplant.  Soldier will be retired."
* the RSO placed her signature on the document on 22 March 1990
* the FSM's spouse (A____ L. R____, Jr.) concurred with the SBP election on 22 March 1990 and the RSO witnessed his signature

3.  A "Statement" shows, "I, A____ L____ R____, Jr., spouse of [the FSM] do hereby concur in my spouse's SBP election as indicated below."  It shows a checkmark in item 2, "No survivor coverage for spouse, but coverage for children."  The FSM's spouse and RSO placed their signatures on the document on 22 March 1990.


4.  U.S. Total Army Personnel Command, Alexandria, VA, Orders D61-30, dated 23 March 1990, relieved the FSM from assignment and duty because of physical disability and placed her on the Temporary Disability Retired List effective
23 March 1990.

5.  A DD Form 1300 (Report of Casualty) shows the FSM died on 23 March 1990.

6.  In support of the request the applicant provides the following documents.

	a.  Missouri, Department of Health, Certificate of Death, that shows the FSM died on 23 March 1990.

   b.  Missouri, Department of Health, Certificate of Death, that shows A____ L____ R____ Jr. (applicant's father) died on 5 February 2014.

   c.  State of Arkansas, Department of Health, Division of Vital Records, Certification of Birth, that shows the applicant was born on 16 January 1985.  The FSM and A____ L. R____ are listed as her parents.

   d.  A Social Security card and Missouri Driver License that offers identification of the applicant.

   e.  Three SSM Health Care, St. Louis, MO, medical documents, issued by Doctor L____ G. L____, that show the applicant was –

* diagnosed with migraine (primary), major depression, and anxiety
(on 2 April 2014)
* excused from work from 31 March 2014 through 25 April 2014, returning on 27 April 2014
* excused from work from 23 April 2014 through 23 May 2014, tentatively returning on 27 May 2014

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.

	a.  The term "dependent child" means a person who is unmarried; 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; is incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday; or 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.

	b.  Surviving children are only entitled to SBP payments until reaching age 22.  Changes in SBP options are not authorized except in specific instances, or as authorized by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's SBP annuity based on children only coverage should be reinstated, or in the alternative, payment of the SBP annuity based on a child incapable of self-support because of a mental or physical incapacity.

2.  The evidence of record shows the day prior to the FSM's death, an SBP election was made for child only coverage and the FSM named her spouse as her beneficiary for unpaid benefits.

   a.  The FSM died on 23 March 1990.  At the time, the applicant was five years of age.

   b.  Thus, the applicant became eligible for receipt of the SBP annuity (subject to management of the funds (in her behalf) by an individual who had attained the age of majority).  In this case, presumably, her father. 

3.  The evidence of record shows a child who is unmarried, 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 is eligible for the SBP annuity.  However, the SBP annuity is terminated when the eligibility criteria is/are no longer met.

   a.  The applicant reached the age of 22 in January 2007.  

   b.  It cannot be determined from the available evidence of record if the applicant married prior to age 22 or if the SBP annuity continued based on eligibility as a student (until age 22).  Thus, it cannot be determined from the available evidence of record exactly when the applicant's SBP annuity was terminated based on her loss of eligibility.

   c.  In any event, it is presumed the applicant's SBP annuity was terminated by the time she reached the age of 22, which would have been proper and correct.

4.  The applicant provides evidence that, on 2 April 2014, she was diagnosed with migraine (primary), major depression, and anxiety, and that she was temporarily excused from work from 31 March 2014 through 23 May 2014.

   a.  She is currently 29 years of age.

   b.  There is no evidence of record that shows the applicant was declared incapable of self-support because of a mental or physical incapacity existing before her 18th birthday.

   c.  Thus, there is no basis for correcting the FSM's records to show she elected SBP based on a child incapable of self-support because of a mental or physical incapacity.  Therefore, the applicant is not entitled to an SBP annuity.

5.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20140008888



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008888



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1