RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060011649


	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.  



	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 she be reinstated as a Survivor Benefit Plan (SBP) beneficiary.

2.  The applicant states she is a disabled adult who lived with and was a dependent of her father, the former service member (FSM).  He retired on 31 July 1969 and he died on 17 September 1978.  Thereafter she received SBP payments until she married on 27 September 1980.  She divorced on 8 February 1993.  She has been receiving Social Security disability benefits effective 10 April 2002.

3.  The applicant's mother states the applicant had a craniotomy on 17 July 1973, at age 16.  Open period enrollment for the newly enacted SBP was nearing its cut-off.  Because the applicant's prognosis for recovery was poor, the FSM enrolled her as sole beneficiary during the initial open season for SBP.  After the FSM's death in 1978, the applicant received her SBP annuity until she married in September 1980, at which time it ceased.  The applicant's mother states she attempted to reinstate the applicant's SBP when the applicant divorced in 1993, but was told benefits could not be resumed.  The mother now believes that information was incorrect.

4.  The applicant provides:

	a.  an 8 August 2006 letter from her mother;

	b.  her marriage certificate, dated 27 September 1980;

	c.  her divorce decree, dated 8 February 1993;

	d.  SF 502 (Narrative Summary), dated 13/14 August 1973;

	e.  a 29 December 1975 Neuropsychological Evaluation of [Applicant];

	f.  a 3 June 1992 Confidential Psychological Evaluation;

	g.  a 29 May 1998 Outpatient Intake Evaluation Clinical Report;
	
	h.  an 8 March 2004 Social Security Administration Decision;

	i.  a 14 August 2002 Report of Psychological Evaluation;

	j.  the FSM's Certificate of Death on 17 September 1978;

	k.  the FSM's retirement DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and

	l.  the Marriage Certificate of the FSM and the applicant's mother.

CONSIDERATION OF EVIDENCE:

1.  The FSM was a Regular Army Soldier, serving more than 25 years on active duty and retiring as a Sergeant First Class (SFC/E-7) on 31 July 1969.

2.  The record shows the FSM married the applicant's mother on 5 June 1949.  The applicant was born on 29 October 1956.  After the FSM's 1969 retirement, the applicant, then 16 years old, began complaining of a sudden onset headache with nuchal rigidity (stiff neck) and photophobia.  She was diagnosed as having a large arteriovenous (AV) malformation and underwent a left temporo-frontal craniotomy at Madigan Army Medical Center, Tacoma, WA on 17 July 1973.  On 18 January 1974, she underwent an elective left fronto-temporal cranioplasty.

3.  In 1975, the applicant was examined by a clinical neuropsychologist.  She was found to have, "Organic Brain Syndrome, moderate in severity, lateralized to the left hemisphere, manifested by significant impairment in receptive and expressive language functioning, deficiencies in the ability to deal cognitively with verbal symbolic material, mild deficits in verbal learning and memory, marked difficulty with abstract reasoning and conceptualization tasks and significant losses in motor skills with the right hand.  This individual can be considered disabled with respect to personal and occupational activities heavily dependent upon speech and language functioning."

4.  Public Law 92-425 established the Survivor Benefit Plan (SBP) effective 21 September 1972.  The initial enrollment period was for 1 year, but was extended through 20 March 1974.

5.  The applicant's mother states the FSM enrolled in the SBP in late 1973 or early 1974 with the applicant as sole beneficiary.  The DD Form 1883 (Survivor Benefit Plan Election Certificate) is not contained in the record.

6.  The FSM died on 17 September 1978.

7.  The applicant's mother states the applicant received an SBP annuity from the FSM's death until she married on 27 September 1980.  There is no evidence in the record to confirm that the FSM participated in the SBP, or that the applicant ever received SBP payments.

8.  The applicant divorced on 8 February 1993.  By an Office of Hearings and Appeals decision on 8 March 2004, the Social Security Administration informed the applicant they had awarded her disability insurance benefits effective 10 April 2002.

9.  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 dependents.  Military members who were retired before 21 September 1972 had until 20 September 1973 (subsequently changed to 20 March 1974) to apply for coverage under the SBP.

10.  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, 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 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.

11.  Several Comptroller General decisions and Board of Veterans Appeals decisions have addressed the issue of what constitutes a "dependent child."  

12.  Comptroller General decision 65 Comp. Gen. 767, dated 1986, concerned mainly the issue of whether a child beneficiary lost eligibility for an SBP annuity because of marriage.  It noted parents' responsibility to support their children ordinarily ceases when the children reach the age of majority, unless a child remains incapable of self-support because of physical or mental infirmity.  A valid marriage contracted at any time by a child terminates the parents' responsibility to support the child, however, since the marriage creates relations inconsistent with that responsibility.  The courts have generally held also that this "emancipated" status of a child who marries is unaffected by a subsequent divorce, so that the parents' responsibility of support is not renewed upon the 

child's divorce.  Hence, the Comptroller General concluded that as a general rule a child who lost SBP annuity eligibility due to marriage could not regain eligibility upon the termination of that marriage through divorce.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the record to show that the FSM ever elected to participate in the SBP during the program's initial enrollment period from 21 September 1972 to 20 March 1974.

2.  Evidence of record does show that the applicant is the daughter of the FSM and that she became disabled at age 16, while a dependent child of the FSM.

3.  Evidence of record shows the applicant married on 27 September 1980 and remained married until she divorced on 8 February 1993.

4.  Assuming in arguendo that the FSM enrolled in the SBP between
21 September 1972 and 20 March 1974 and that he named the applicant, his dependent daughter, as his sole beneficiary, that beneficiary status ended on
27 September 1980 upon her emancipation through marriage.

5.  Courts have generally held also that the "emancipated" status of a child who marries is unaffected by a subsequent divorce; hence, the Comptroller General has concluded that, as a general rule, a child who loses SBP annuity eligibility due to marriage cannot regain eligibility upon the termination of that marriage through divorce.

6.  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

__klw___  __cad___  __eif___  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.




							Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060022649
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0100
2.

3.

4.

5.

6.