MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 November 2000                   
	DOCKET NUMBER:   AR1999029638

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his son be re-added to his Survivor Benefit Plan (SBP) as a beneficiary.

APPLICANT STATES:  That his son was first diagnosed with schizophrenia during college when he was 21 years old.  He has recently been medically found to be incapable of self-support because of this incapacity.  He provides two letters dated December 1998 and September 2000 from a civilian doctor showing his son suffers from schizophrenia, that he was incapable of self-support because of his schizophrenia, and that the incapacity existed before he was 18 years of age.  The applicant states that earlier medical records are not available. He also provides his son’s college transcripts to show he did attend college through age 22 and a brief statement of his son’s employment and marital history.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned and entered active duty on 2 October 1957.  He retired on 1 August 1982.  At that time he elected to participate in the SBP for spouse and child coverage.  He had listed his 19-year old son (date of birth 28 March 1962) as his dependent child. 

The applicant’s son was admitted to Auburn University on 24 March 1983 and graduated in December 1986.  Apparently his son was diagnosed with schizophrenia while still in college but he was not determined to be incapable of self-support until much later.  When the applicant’s son turned age 22, he lost his eligibility to be an SBP beneficiary.

Two statements from Dr. L___, M. D., indicates that the applicant’s son suffers from schizophrenia, the incapacity existed before age 18, and the son was incapable of self-support because of that incapacity.

The applicant includes a brief summary of his son’s employment history which shows he had severe difficulties in holding any job.  He also states his son was briefly married in 1987.  The marriage was terminated in six weeks due to his mental illness and his refusal to work.  Divorce was granted in six months.

Public Law 92-245, 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.  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. 

The Diagnostic and Statistical Manual of Mental Disorders (DMSM), fourth edition states that the onset of schizophrenia typically occurs between the late teens and the mid-30s.  The onset may be abrupt or insidious.  Family members may find this behavior difficult to interpret and assume that the person is “going through a phase.”  There are gender differences.  Individuals with an early age at onset are more often male and have a poorer premorbid adjustment, more evidence of structural brain abnormalities, more evidence of cognitive impairment and a worse outcome.  Complete remission is probably not common in this disorder.  Of those who remain ill, some show a progressive worsening associated with severe disability. 

Comptroller General Decision B-221945 65 Comp. Gen. 767, 1986 determined that, as a general rule, a valid marriage entered into by an SBP participant’s child terminates the child’s annuity eligibility for all time because a valid marriage operates to end a child’s dependence upon its parents and the relationship of dependency cannot be renewed by a subsequent divorce.  Nevertheless, if the marriage is ended not by an ordinary divorce but rather by an annulment, or there is otherwise a judicial decree rendered by a court of competent jurisdiction declaring the marriage void, then there would be a proper basis for concluding the marriage was invalid and the child’s annuity coverage could be reinstated.
The Comptroller General examined the legislative history of the military and civil service survivor annuity programs and could find no explanation detailing the reasons why only “unmarried” children were defined as eligible child beneficiaries.  However, they noted that the restriction is consistent with both common-law and statutory rules generally adopted and followed by the states concerning the relationship between parent and child.  Under those rules, parents’ responsibility to support their children ordinarily ceases when the children reach the age of majority.  A valid marriage contracted at any time by a child terminates the parents’ responsibility to support the child 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  According to the DMSM, the applicant’s son most likely did have schizophrenia before age 18 although a definitive diagnosis may not have been made until several years later and although his condition may not have worsened into a severe incapacity until later still.
2.  The SBP law defines dependent child as “incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday or incurred on or after that birthday but before the person’s 22d birthday while pursuing such a full-time course of study or training. 

3.  However, it appears that the applicant’s son entered into a valid marriage in 1987, prior to the determination that he was incapable of self-support.  Even though the marriage was terminated through divorce, the Comptroller General has ruled that a child who lost SBP annuity eligibility due to marriage could not regain eligibility upon the termination of that marriage through divorce.

4.  Unfortunately, in view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fne___  __tsk___  __wdb___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999029638	
SUFFIX		
RECON		
DATE BOARDED	20001102	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.