RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-01608
            INDEX CODE:  137.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased common-law husband’s records be corrected to entitle her  to  a
Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She and the deceased were common-law married since late 1997.  They  brought
a house in 2001 and lived as husband and wife until his death on 18 Aug  09.
 He deemed her as his beneficiary because she was  his  caregiver  and  wife
for many years.

The information she  submitted  proves  he  wanted  her  to  receive  a  SBP
annuity.  He named her as beneficiary over all of his affairs but forgot  to
include the SBP.

In support of her request,  the  applicant  submits  a  personal  statement,
copies of a death certificate,  last  will  and  testament,  direct  deposit
forms and envelopes addressed to her.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The member and spouse were married on 8 Oct 41.  He  retired  on  1 Sep  69.
He elected spouse only SBP coverage based on a reduced level of retired  pay
during the initial SBP open enrollment period.   He  increased  his  reduced
level of SBP coverage during an open enrollment period  from  1  Oct  81  to
30 Sep 82.  Subsequently,  he  increased  his  enrollment  coverage  to  the
maximum level and elected full spouse Supplemental SBP  coverage  during  an
open enrollment period from 1 Apr 92 to 31 Mar 93.  His spouse  died  on  17
May 97 and SBP costs were suspended.  His death certificate reflects he  was
married when he died and the applicant was his common-law spouse.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

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AIR FORCE EVALUATION:

DPSIAR  has  no  recommendation.   DPSIAR   notes   the   decedent’s   death
certificate does not properly document the applicant’s common-law  marriage,
but reflects the information provided by his  family  at  the  time  of  his
death.  His last will and testament states “At  the  time  of  execution  of
this Will, I am not  married…”  and  it  identifies  the  applicant  as  the
recipient of his estate.

DPSIAR states SBP is awarded to common-law  spouses  who  properly  validate
they resided in a state that recognizes common-law marriages and  the  union
existed  for  one  full  year  –  the  required  length  of  post-retirement
marriages before the spouse becomes eligible as an SBP beneficiary.

The complete DPSIAR evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submits two letters from two physicians who always viewed  she
and the former service member as being married.

The applicant’s complete submission, with attachment, is at Exhibit D.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  Based on a review of this case by the  MRB
Legal Advisor, it appears that under Texas law, the applicant  and  deceased
member had to meet three requirements to be recognized as having  a  common-
law marriage.  Unfortunately, it appears that only two of  the  requirements
were met.  The  recognition  process  requires  individuals  to  complete  a
declaration of informal marriage form, issued by the  court,  and  meet  the
legal requirements which are stated as a  three-prong  test.   Specifically,
the evidence must show that the parties agreed  to  be  married,  that  they
lived together in  Texas  as  husband  and  wife,  and  they  have  publicly
represented themselves as married.  Moreover, all three of these  requisites
must exist at the same  time.   Based  on  the  evidence  submitted  by  the
applicant, we are persuaded that two of the  three  requirements  were  met,
i.e., the applicant and deceased member lived together for  many  years  and
publicly represented themselves as  married.   Nevertheless,  based  on  the
applicant and deceased member never taking steps to complete  a  declaration
of informal marriage form and the statement in the  deceased  member’s  will
that they were not married, we do not believe it would be proper for  us  to
conclude that the  applicant  and  deceased  member  were  in  a  common-law
marriage.  However, should the applicant obtain recognition from  the  state
of Texas that she and the applicant were in a common law marriage, we  would
be willing  to  reconsider  her  request.   Therefore,  in  the  absence  of
evidence to the contrary, we find no basis to recommend granting the  relief
sought in this application at this time.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  the  application  was
denied without a personal appearance; and that the application will only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

_______________________________________________________________

The following members  of  the  Board  considered  AFBCMR  BC-2010-01608  in
Executive Session on 23 Feb 11, under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence in AFBCMR BC-2010-01608 was considered:

    Exhibit A.  DD Form 149, dated 23 Mar 10, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIAR, dated 18 Jun 10.
    Exhibit C.  Letter, SAF/MRBR, dated 9 Jul 10.
    Exhibit D.  Letter, Applicant, dated 9 Aug 10, w/atch.
    Exhibit E.  Letter, applicant, dated 23 Aug 10, w/atch.




                                   Panel Chair