| Mr. Carl W. S. Chun | Director | |
| Mr. Jessie B. Strickland | Analyst |
| Mr. Raymond J. Wagner | Chairperson | |
| Ms. Kathleen A. Newman | Member | |
| Mr. Ronald E. Blakely | Member |
APPLICANT REQUESTS: That she be granted Survivor Benefit Program (SBP) benefits.
APPLICANT STATES: That she was denied SBP benefits because she was not married to the deceased former service member (FSM) for 1 year prior to his death. She further states that she should be granted SBP benefits because she lived with the FSM for 2 years before they were married. In support of her application she submits a copy of the FSM’s death certificate, a copy of her marriage license to the FSM, a copy of the denial letter for SBP benefits from the Defense Finance and Accounting Service (DFAS), documents showing that she had accounts with the FSM prior to their marriage and three third party statements indicating that she and the FSM lived together prior to their marriage.
EVIDENCE OF RECORD: The FSM's military records show:
On 18 October 1971, after having served 4 years and 17 days of total active service, the FSM was placed on the Retired List in the pay grade of E-5 by reason of permanent physical disability (40%). He was married at the time of separation to someone other than the applicant.
On 5 September 1999, the FSM married the applicant and remained married until his death on 5 August 2000.
On 2 February 2001, the DFAS in Denver, Colorado denied the applicant’s claim for a SBP Annuity based on the fact that the applicant had not been married to the FSM for a period of 1 year prior to his death and/or because no children were born of the marriage.
The supporting documents submitted by the applicant show that the applicant and the FSM were engaged in November 1997, that they opened a joint checking account on 27 March 1998, and that they purchased a home together in April 1998.
Public Law 92-425, the SBP, enacted 21 September 1972, provided, in pertinent part, that military members on active duty could elect to have their Retired Pay reduced to provide for an annuity after death to surviving dependents. For spouses to be eligible to receive SBP benefits, they had to be lawfully married for a period of 2 years prior to the death of the FSM, unless a child was born of the marriage. Public Law 94-496, which went into effect 1 October 1976, reduced the period of marriage to 1 year or the birth of a child of the marriage, whichever occurred first.
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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. While it is indeed unfortunate that the applicant and the FSM were married less than a year before the FSM died, the applicable laws governing SBP entitlements require that a lawful marriage must exist for a period of at least 1 year prior to the death of the eligible service member, unless a child is born of the marriage. The applicant has failed to show through the evidence of record or the evidence submitted with her application that such was the case.
3. While the Board accepts the fact that the applicant lived with the FSM for more than a year prior to their marriage, the law does not recognize or provide for payment of SBP benefits for relationships that do not involve a lawful marriage that is recognized as such, in the State in which they reside. Accordingly, the Board finds no basis to grant her SBP benefits.
4. 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
__kan___ ___reb__ __rjw____ DENY APPLICATION
| CASE ID | AR2001054868 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2001/10/25 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 347 | 137.0100/SBP ELIG |
| 2. | |
| 3. | |
| 4. | |
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| 6. |
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