IN THE CASE OF:  	  

		BOARD DATE:  8 September 2015	  

		DOCKET NUMBER:  AR20140021366 


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 entitlement to the Survivor Benefit Program (SBP) annuity based on his death and the death of her mother.

2.  The applicant states:

   a.  She is the disabled daughter of now deceased Lieutenant Colonel (LTC) JPS, U.S. Army (Retired).  She does not know why she never received the SBP annuity.  When her father served on active duty, he told her she would be taken care of for life because of her permanent disability.  Her mother received SBP upon her father’s death until she died in July 1995 but she (the applicant) never received a letter from the Defense Finance and Accounting Service (DFAS).  Her mother had repeated her father’s statement that she would receive SBP as the disabled daughter.  She is unmarried, has no children, and has a military identification (ID) card with entitlement to Tricare for Life effective 15 April 1988. 
   
   b.  She has a history of bilateral severe to profound hearing loss since birth and has worn two hearing aids since she was age 14.  She never finished high school but received her general education diploma (GED) in 1999 when she was 39 years old.  She is now 56 years old and housebound with no outside work experience.  She went to vocational rehabilitation in 1999 and they were unable to help her because of her hearing as well as her chronic back pain.  She should be given full consideration for the SBP annuity as a disabled child.

3.  The applicant provides:

* the FSM’s DD Form 214 (Report of Separation from Active Duty)
* DD Form 1173 (United States Uniformed Services ID and Privilege Card)
* two certificates of death
* two certificates of birth
* two letters
* an Audiology and Hearing Aid Report

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant was born on 12 July 1958 and turned 18 years of age on 12 July 1976.  Having had prior active service, the FSM was appointed as a Reserve officer and entered active duty on 8 March 1945.  On 23 September 1960, he was promoted to the rank/grade of LTC/O-5 in the Regular Army.

3.  On 6 June 1973, in conjunction with his upcoming retirement, he completed a DD Form 1883 (SBP - Election Certificate) wherein he indicated he was married and had one dependent daughter born on 12 July 1958.  He indicated he was electing SBP based on the full amount of his retired pay.

4.  He was honorably retired on 31 December 1973 in the rank of LTC.  He completed a total of 31 years and 17 days of credible active service and 31 years, 6 months, and 20 days of creditable active service for retired pay.

5.  The FSM died on 15 April 1988.  The FSM’s surviving spouse died on 20 July 1995.

6.  The applicant provides:

   a.  An Audiology and Hearing Report, dated 13 November 2008, wherein Dr. RMD, an audiologist, stated, in part, the applicant was seen on that date for an audiological evaluation.  She (the applicant) had stated that she had a severe to profound sensorineural hearing loss since birth.  Her loss was first identified at 3 years of age but it wasn’t until she was 7 that she received her first hearing aid. She was in a special school for children with disabilities.  He father was career Army, the family traveled a lot, and she communicated by lip reading.
   
   b.  A letter, dated 17 February 2011, wherein Dr. MPA, an orthopaedic surgeon, stated the applicant had been a patient of hers for some time. She underwent cervical spine surgery with a fusion in 1995 and had a history of chronic back pain with injuries in 1997 and a re-injury in 2009.  These conditions have left her permanently disabled (emphasis added).
   
   c.  A letter, dated 19 September 2014, wherein Dr. RMD, the audiologist, stated he had been treating the applicant since 2008.  She had a history of bilateral severe to profound sensorineural loss with the associated communication complaints.  The loss was identified when she was a child.  She currently had two hearing aids that were fitted in 2009.  Her loss was permanent and she lip read to supplement her hearing aid use.  She should be given full consideration for disability benefits because of her etiology, longevity degree, and type of loss.

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 spouse and dependent children.  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; or is incapable of self-support because of a mental or physical incapacity existing before the person’s 18th birthday.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she is entitled to her deceased father’s SBP annuity as she has been disabled since she was a child and is permanently disabled.

2.  Children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  

3.  Notwithstanding the applicant’s sincerity, she provided a statement from an orthopaedic surgeon that stated she underwent cervical spine surgery in 1995 (when she was 37 years old) and had a history of chronic back pain with injuries in 1997 and these conditions left her permanently disabled.  She also provided a statement from an audiologist that stated she had a severe to profound bilateral hearing loss that was identified as a child.

4.  While, it is recognized that a bilateral hearing loss is a disability, she has not provided any conclusive evidence that shows her hearing loss, even if identified prior to her turning 18 years old, rendered her incapable of self-support and was considered at that time as permanently disabling.  Regrettably, the fact that she became permanently disabled after the age of 37 years because of her back condition does not meet the criteria of the law for entitlement to the SBP annuity.

5.  In view of the foregoing, there is insufficient evidence on which to grant 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 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)                                         AR20140021366





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ABCMR Record of Proceedings (cont)                                         AR20140021366



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