Care and Disposition of Remains - Army Publishing Directorate ...

missing person’s official military or civilian personnel record. When the spouse’s relationship is challenged, the law of
the deceased or missing person’s domicile is used to determine the surviving spouse’s status. Accordingly, questions as
to the continued existence of a marital relationship while the parties are pending a divorce, or while they are legally or
otherwise separated are determined by the law of the parties’ domicile. The SCMO should consult with the legal
assistance officer for guidance as to which State’s law to apply and its provisions. Additionally, the validity of a
common law marriage is also determined by law.
b. In the event the surviving spouse is charged with murdering the decedent, delivery should be made to the legal
representative. If a legal representative has not been appointed, the SCMO must refer to the law of the State where the
decedent was domiciled. If the applicable law imposes no disqualification on the spouse because of the pending
charges, delivery must be made to the spouse. If that spouse is disqualified by the applicable civil law and no legal
representative has been appointed, delivery may be made to the next highest person in the order of precedence.
c. In the event of the simultaneous death of soldier and spouse or both are missing and there are no children, the
SCMO will deliver each person’s PE to the legal representative of each decedent’s estate. If no legal representative is
identified, the SCMO will request disposition instructions from PERSCOM (TAPC–PED–D).
19–8. Eldest child
A child (born in or out of wedlock) of the deceased or missing person includes biological and adopted children. A step
child is not a child of the deceased or missing person for disposition of PE purposes. Additionally, a child for whom
the deceased or missing person has lost parental rights and privileges through a civil court proceeding (such as
adoption) is not a child of the deceased or missing person for disposition of PE purpose.
a. Often the eldest child is a minor child who lives with the child’s other biological parent. Thus, the child’s other
biological parent will gain effective control of the PE. The SCMO may be caught in the middle of a bitter dispute
between the other biological parent and the deceased or missing person’s parents. The SCMO should not become
involved in family disputes and strictly follow the procedures in this paragraph.
b. The SCMO will send a PE determination letter (a sample letter is found in DA PAM 638–2) with a copy of the
PE inventory to the child’s other biological parent/legal guardian and the deceased or missing person’s parents (a
sample letter is found in DA PAM 638–2). If the deceased or missing person’s parents are not married, both parents
will receive a PE determination letter. This letter will advise that the SCMO is required to deliver the PE to the oldest
child of the deceased, unless a legal representative submits a claim for the PE by a specified date (normally the 45th
day from the date of notification). Sample PE determination letters when the PERE is a child are in DA PAM 638–2.
c. The SCMO will hold the PE for a reasonable period of time, but not less than 45 days, for the interested parties to
act. The SCMO will, upon receipt of a claim by the legal representative, release the PE to the legal representative. If
the SCMO does not receive a response by the established date, the SCMO will release the PE to the eldest child in care
of the other biological parent.
d. If PE have been delivered to the eldest child and a legal representative is subsequently appointed, any further
distributions of PE will be made to the legal representative. However, the SCMO has no authority to retrieve the items
sent to the eldest child prior to the appointment of a legal representative.
19–9. Parent of the deceased
A parent of the deceased refers to the biological parents of the deceased or missing person unless parental rights have
been terminated by a civil court. As an adoption terminates parental rights, adoptive parents of the deceased or missing
person replace the biological parents in the order of precedence. Accordingly, the rules that apply to biological parents
also apply to adoptive parents. Step-parents are not biological or adoptive parents and have eligibility to the PE only as
a person standing in loco parentis.
a. If the parents are married, the elder parent is given preference unless that parent abandoned the support of the
family at a time when the deceased or missing person was still a minor. Unless there is evidence indicating that the
elder parent deserted or abandoned the family, the burden is on the younger parent to establish such abandonment and
the right to priority.
b. If the parents were divorced after the deceased or missing person reached the age of majority, the elder parent is
given preference unless that parent abandoned the support of the family at a time when the deceased or missing person
was still a minor. Unless there is evidence indicating that the elder parent deserted or abandoned the family, the burden
is on the younger parent to establish such abandonment and the right to priority.
c. If the parents were divorced before the deceased or missing person attained majority, the parent who received
legal custody of the deceased or missing person as a child is the PERE.
d. If the parents were never married, the parent who had custody of the deceased or missing person at the time of
entry in to the Army is the PERE.
e. As there is often friction, or even antagonism, between separated, divorced, or unmarried parents, this type of
situation can become a bitter dispute with the SCMO caught in the middle. The SCMO should not become involved in
the family dispute and strictly follow the procedure in this paragraph.
(1) The SCMO will send a PE determination letter (sample letters are found in DA PAM 638–2) with a copy of the
AR 638–2 • 22 December 2000
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