IN THE CASE OF:	  

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080013206 


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 requests, in effect, that the record of the deceased former service member (FSM) who fathered her child be corrected to show her daughter is entitled to receive a Survivor Benefit Plan (SBP) annuity based on the death of the FSM.  

2.  The applicant states, in effect, that she and the FSM were never married, but they did have a child together.  She states that the FSM took care of her daughter through court-ordered child support and he was involved in her daughter’s life when he was not deployed.  

3.  The applicant provides her daughter’s birth certificate, court-order declaring the FSM the father of her daughter and a record of child support payments in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows that on 15 October 2007, during his retirement processing, he completed a Data for Payment of Retired Personnel, in which
he elected Children Only full SBP coverage.  No dependent children were listed in Section VIII; however, two daughters, neither of whom was the applicant’s daughter, were listed as beneficiaries for unpaid retired pay in Section V. 


2.  On 15 November 2007, the FSM was honorably retired, in the rank of 
staff sergeant (SSG), by reason of temporary disability.

3.  On 9 December 2007, the FSM died.  

4.  A review of the DFAS record shows the FSM elected children only SBP coverage but listed no beneficiaries.  DFAS received an annuity request for the applicant’s daughter; however, the proof that the daughter resided with the FSM that DFAS requested was never provided.  

5.  The applicant provides a State of Louisiana birth certificate for her daughter.  She also provides a 10th Judicial District Court order, dated 7 March 2007, which identifies the FSM as the father of the applicant’s daughter, and which directed the FSM to pay child support in the amount of $398.00 per month for support of the daughter directly to the Department of Social Services, Baton Rouge, Louisiana.  

6.  During the processing of this case, a legal review was completed by the Army Review Boards Agency (ARBA) legal advisor, which resulted in a recommendation for relief.  The ARBA legal advisor pointed out that under the 1972 SBP statute, a child such as the applicant's daughter, who is the possessor of a court order fixing paternity and establishing a support obligation, cannot receive an SBP child annuity unless she is also able to show that she "lived with" her father.  The legal advisor also indicated that after the passage of the SBP statute, the "lived with" requirement of the Civil Service Retirement Act (CSRA) came under Constitutional attack as violative of the equal protection component of the due process clause of the Fifth Amendment because the showing required to establish entitlement to a child annuity was more onerous for illegitimate children than for others, which resulted in lower federal courts striking down
the “lived with” requirement as unconstitutional in the CSRA context.  One 
case (United States v. Clark, 445 U.S. 23 (1980)) on the "lived with" requirement reached the Supreme Court; however, the Court was able to avoid what it referred to as a “serious constitutional question” by simply adopting a “saving statutory construction."  In the immediate aftermath of this case, the CSRA was amended to provide several ways other than the "lived with” requirement for an illegitimate child, referred to as a “recognized natural child,” to prove dependency. 

7.  The ARBA legal advisor further pointed out that the CSRA was amended so that it now would pass constitutional muster as applied to illegitimate children, and no other federal child survivor annuity programs, for example those included 

in the Railroad Retirement Act and the Social Security Act, can be found that 
continue to maintain the “lived with” requirement.  The unfortunate fact remains that the language contained in the SBP statute has not been changed and the “lived with” requirement remains on the books.  The legal advisor opined that in all likelihood, the "lived with" requirement remains in the SBP statute as an oversight rather than the intent of Congress. 

8.  The ARBA legal advisor further pointed out that it appears the “lived with” requirement, certainly as applied to the applicant’s daughter, is unconstitutional, and that but for the Supreme Court’s penchant for resolving cases without resort to constitutional analysis if at all possible, Clark, in all likelihood would have struck down the “lived with” requirement.  The SBP statute would then have been revised accordingly, or at a minimum in its application permitted payment of annuities to children such as the applicant's daughter, an actually-dependent child whose paternity has been judicially established and to whom payment of an annuity presents no danger of a fraud upon the Government.  

9.  During the processing of this case, the ARBA legal advisor presented legal arguments supporting relief in this case to a DFAS legal representative and sought records correction alternatives that would have allowed the Board to recommend equity relief in this case that could be implemented by DFAS.  The DFAS legal representative opined that the Board lacked the authority to make a finding regarding a legal conclusion, i.e. that the applicant's daughter did live with the member in a parent-child relationship for purposes of satisfying the requirement of the SBP statute 10 USC 1447(II) (A) (iii).  He further stated that the only remaining option is for the applicant to submit further documentation to DFAS that establishes that for some definable period of time, the FSM and the applicant's daughter resided with each other as parent and child.  He opined that absent such evidence, the provision of 10 USC 1447 (II) (A) (iii) would have to be repealed to overcome the "lived with" requirement.  He concluded by stating that DFAS has no authority to read the "lived with" requirement out of the law.   

10.  SBP was established by Public Law 92-425, 21 September 1972.  The purpose of SBP was to provide retiring Soldiers the option to elect to provide the continuation of a portion of retired pay to their designated beneficiary (ies).  Eligible children may be covered alone (Child Only Coverage) of may be included with spouse (former spouse) coverage (Spouse and Child or Former Spouse and Child Coverage).  

11.  10 USC 1447 provides legal definitions applicable to the SBP.  10 USC 1447 (II) (A) (iii) provides that a dependent child is the child of a person whom the plan 

applies, including an adopted child, and a stepchild, foster child, or recognized natural child who "lived with" that person in a regular parent child relationship.

12.  The Defense Office of Hearings and Appeals (DOHA), is the largest component of the Defense Legal Services Agency.  The Claims Division, including the Claims Appeals Board performs some work once performed by the U.S. General Accounting Office (GAO) in settling general claims by or against individuals and businesses.  Most of these claims arise under Section 3702 of title 31 of the United States Code.  Today the Claims Division considers appeals of claims for uniformed services pay and allowances (including travel, transportation, retired pay and survivor's benefits).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the record of the deceased FSM, who fathered her child, should be corrected to show her daughter is entitled to receive an SBP annuity based on the death of the FSM was carefully considered.  However, notwithstanding the equity considerations and the recommendation of the ARBA legal advisor, the existing governing SBP law requires that a child must have "lived with" the member covered by the plan in a regular parent-child relationship in order to qualify to receive a SBP annuity as a dependent child.  

2.  In view of the governing SBP law and absent any evidence that the applicant's daughter ever "lived with" the FSM in a normal parent-child relationship, there is no effective relief that can be ordered by this Board.  Previous coordination with DFAS makes clear that even if relief were directed in this case, DFAS would decline payment.  

3.  Given the compelling equity argument presented in this case, it is regrettable that this Board is unable to effectively grant the requested relief.  The applicant is advised that the Board's denial is based solely on the Board's inability to authorize a records correction that would result in effective relief that could/would be implemented by DFAS in her case.  In light of this, the applicant may wish to contact DFAS to determine what specific documents she could provide that would satisfy the "lived with" requirement, and if she has any of these qualifying documents, to reapply to DFAS.  If the applicant is unable to satisfy the DFAS documentary evidence requirement, she may wish to appeal the DFAS denial of her claim through the  DOHA Claims Division.  As a last resort, she may elect to pursue relief in a court of appropriate jurisdiction.  


BOARD VOTE:

________  ________  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not overcome the requirements of the governing SBP statute.  Therefore, the Board determined there was an insufficient basis to grant relief.    




      _______ _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)                                         AR20080013206



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013206


5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1