MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002
	DOCKET NUMBER:   AR2002075048

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 she be determined to be eligible to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

APPLICANT STATES:  That she and her deceased spouse, a former service member (FSM), married on 10 February 1995; however, they lived as a married couple (common law) since 1985.  He enrolled in the RCSBP on 4 April 1995.  He died on 15 May 1995.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 26 April 1942.  After having had prior service, he enlisted in the Pennsylvania Army National Guard on 8 May 1986.  His Record of Military Processing - Armed Forces of the United States, DD Form 1966/2, for this enlistment shows he was married to L___ at this time.  His Personnel Qualification Record, DA Form 2, dated 10 October 1990 shows his marital status as married.  

The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 9 November 1992.  On 28 February 1993, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  He elected to participate in the RCSBP at this time for children only coverage, full base amount, option C.  The DD Form 1883 shows that he was not married at this time.

The FSM and the applicant, G___, married on 10 February 1995 in Baltimore County, MD.  On 4 April 1995, the FSM requested his RCSBP be changed to provide for spouse coverage.  He died on 17 May 1995.

Public Law 92-425, 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.  

Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility to 1 year following post-retirement marriage.  

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 
whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

A common law marriage may be recognized for SBP annuity purposes if the marriage is recognized in the state in which the retiree and spouse reside.  Documentation must be provided indicating the state in which the common law marriage existed.  At least two notarized statements from persons who live nearby (not relatives of either party) stating the two people involved in the common law marriage do live together as common law husband and wife should be provided.  Documents (such as court orders, tax forms, bank statements, or mortgage statements) indicating that a common law marriage existed should be provided.

The State of Maryland does not permit common law marriages but will recognize a common law marriage if it was valid where it was contracted.  Pennsylvania recognizes a true common law marriage but certain standards must be met.  (See PA. STAT. ANN. Tit. 23, chapter 11, section 1103 (2002); Staudenmayer v. Staudenmayer, 552 Pa. 253 (1998); Africa v. Vaughan, 998 F.Supp. 552 (E.D. Pa. 1998); Fiedler v. National Tube Co., 161 Pa. Super. 155, 53A.2d 821 (1947); and In re Vojatovich Estate, 51 Pa. D. &C. 10 (1945).

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.  The applicant and the FSM formally married on 10 February 1995 and the FSM died on 17 May 1995.  The law requires a 1-year waiting period prior to gaining eligibility after a post retirement (or post retirement-eligible) marriage.  

2.  The applicant provides insufficient evidence to show she and the FSM lived in a common law marriage for more than one year.  It is also noted that a common law marriage must be recognized by the state in which the parties reside.  Maryland (with certain exceptions) does not recognize common law marriages.  Pennsylvania recognizes common law marriages but certain standards must be met.

3.  It is noted that the applicant contends she resided with the FSM in a common law marriage since 1985.  It is noted that the evidence of record indicates the FSM was married to L___ as late as October 1990.  

4.  If the applicant can provide evidence to show they resided in a state that recognized their relationship as a common law marriage, to show when the FSM divorced, and to show they began to live in a common law marriage for more than one year prior to the FSM's death, she may provide such evidence to the Defense Finance and Accounting Service - Cleveland Center with a claim for the RCSBP annuity.  If the claim is denied, she may submit to the Board, with the provided evidence and the Defense Finance and Accounting Service - Cleveland Center's response, for reconsideration.

5.  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

__JNS__  __DPH___  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002075048	
SUFFIX		
RECON		
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	137.01	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.