IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110025113 


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 legal guardian of a minor child and the mother of a retired former service member (FSM), requests, in effect, the election of the FSM’s Survivor Benefit Plan (SBP) coverage be changed from "spouse and child" to "child only" retroactive to the date of his death. 

2.  The applicant states:

   a.  This would be in the best interest of the FSM's minor child.  The FSM was separated and in the process of filing for divorce at the time of his retirement.  His estranged wife, the child's mother, has a history of substance abuse and has already been convicted of drug charges.  
   
   b.  This was a contributing factor in the couple's separation and pending divorce, as well as infidelity and abandonment on the mother's part.  The mother has neither seen nor contributed to the care of the child prior to and since the death of the FSM.  The court has ordered the child into the custody of the grandparents due to the blatant abandonment, neglect, and unfitness of the mother.  It was the FSM's wishes that his daughter be taken care of.

3.  The applicant provides:

* Superior Court of Long County, State of Georgia, Temporary Order
* FSM's death certificate, driver's license, military identification card, and social security card
* Juvenile Court of Murray County, State of Georgia, Order to Take a child Into Immediate Custody Order
* Juvenile Court of Murray County, State of Georgia, Summons and Process
* Juvenile Court of Murray County, State of Georgia, Provisional Order on Deprivation Petition
* Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional documentation in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 27 May 2003.  He married his spouse, Kxxxxx, on 9 June 2006.  

2.  On 1 April 2010, the FSM and his spouse, the minor child's mother, were granted a temporary separation and shared joint legal and physical custody of the child.

3.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 14 January 2011, shows the FSM elected full SBP coverage for "spouse and children."  He named the minor child as his daughter and listed her date of birth as 20 May 2006.

4.  He was honorably retired on 16 January 2011 for permanent disability.

5.  The FSM died on 14 July 2011.  There is no indication the FSM’s spouse applied for the SBP annuity.

6.  On 18 July 2011, the applicant and her spouse petitioned the court to take custody of the FSM's minor child.  The court ordered the child be taken into immediate custody without delay of the applicant and her spouse 

7.  On 23 August 2011, the Juvenile Court of Murray County, State of Georgia, granted the paternal grandparents (the grandmother who is the applicant) legal custody of the minor child for the statutory period of 2 years.  The court found:

* the child was without proper parental care or control, subsistence and education as required by law, or other care or control necessary for her physical, mental, or emotional health and morals and as such she was deprived pursuant to Georgia law
* the child's mother abandoned her with her father who died on 14 July 2011
* the child had not seen the mother in 15 weeks
* the child's mother recently pleaded guilty to several drug charges
* the child's mother has an un-rehabilitated history of using and abusing illegal drugs
* the child's mother was unemployed
* the child's mother had failed to provide any financial support for that child over the course of the last 15 weeks
* there was a history of domestic violence between the child's mother and her current boyfriend
* the child's mother's whereabouts were currently unknown to the petitioners [grandparent]
* the child's mother had medically neglected the child
* since 20 May 2011, the child's mother had failed to visit with the child or provide any child support for the child and failed to attempt retrieval of the child since 20 May 2011

8.  The court ordered the child's mother to pay support for the benefit of the child while the child was in the custody of the petitioners with an expiration date of 14 July 2013.  

9.  Public Law 95-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and his spouse were granted a temporary separation with joint custody of their daughter on 1 April 2010.  On 17 January 2011, the FSM completed a DD Form 2656 that shows he enrolled in the SBP for spouse and children coverage.  

2.  The FSM died on 14 July 2011.  The applicant and her spouse were granted custody of the child on 23 August 2011 for the statutory period of 2 years.  The court stated that the child's mother had abandoned the child in May 2011.  

3.  Unfortunately, because the FSM's divorce was not final at the time of his death, his spouse remains the primary beneficiary of his spouse and child SBP coverage.  Payment is made to the spouse as long as eligibility exists.  Only if the spouse loses eligibility via death or remarriage is the annuity paid to the child. The Board is not unsympathetic to the unusual circumstances present in this case; however, the correction sought by the applicant would deprive the spouse of a vested property interest without due process and is thus inappropriate.

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)                                         AR20110025113



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ABCMR Record of Proceedings (cont)                                         AR20110025113


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