RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 September 2004
      DOCKET NUMBER:  AR2004101070


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Ronald E. Blakely             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased
spouse, a former service member (FSM), be corrected to show he changed his
Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states that they divorced in 1996.  They realized the
divorce was a mistake but let it go without getting remarried.  They
continued to live as man and wife.  She is on a fixed income and needs help
very badly.

3.  The applicant provides the death certificate, their marriage
certificate, the DD Form 1883 (Survivor Benefit Plan Election Certificate),
the FSM's retirement letter and certificate, a Retiree Account Statement
effective 2 December 1999, three documents that show they were living
together after their divorce, and a notarized statement from her sister
stating that the applicant and the FSM were living together as man and wife
after they divorced.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 February 1931.  He enlisted in the Enlisted
Reserve Corps in May 1949.  He and the applicant married on 30 January
1965.  His notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated        13 January 1970.

2.  On 11 August 1979, the applicant completed a DD Form 1883.  He elected
to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for
spouse only coverage, full base amount, option C.

3.  The FSM and the applicant divorced on 25 June 1996.  The SBP is not
mentioned in the divorce decree or separation agreement.  According to the
applicant and several documents provided by her, she and the FSM continued
to live together as husband and wife, giving rise to a common law marriage.

4.  The FSM died on 15 April 2003.  Records at the Defense Finance and
Accounting Service – Cleveland Center show that he continued to pay SBP
premiums after the divorce and no one is currently receiving the SBP
annuity.

5.  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.  If death does not occur before age 60, the RCSBP costs for options B
and C are deducted from the member's retired pay.  An Open Season was
established from 1 October 1978 through       3 September 1979 and later
extended to 31 March 1980.
Public Law 97-252, the Uniformed Services Former Spouses Protection Act
(USFSPA), dated 8 September 1982, established SBP coverage for former
spouses of retiring members.

6.  Public Law 98-94, dated 24 September 1983, established former spouse
coverage for retired members (Reservists, too).

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM elected to participate in the RCSBP in February 1979 for spouse
coverage.

2.  The FSM and the applicant divorced in June 1996.  While the SBP is not
mentioned in the divorce decree, the FSM continued to pay SBP premiums
after the divorce and until his death.  The applicant provided evidence to
show she and the FSM lived together after their divorce; however, she
provided insufficient evidence to show that she and the FSM were party to a
common law marriage for SBP annuity purposes.  (She provided only one
notarized statement verifying she and the FSM lived together as man and
wife after their divorce; however, that statement was from a relative of
hers).

3.  Nevertheless, there is sufficient evidence to show that it was the
FSM's intent to continue to provide the SBP for the applicant.  It would
therefore be equitable to correct the FSM's records to show he changed his
SBP coverage to former spouse coverage after their divorce.
BOARD VOTE:

__fne___  __kyf___  __reb___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

    a.  showing he changed his SBP coverage from spouse to former spouse
coverage on 1 July 1996 and that his request was received and processed by
the appropriate office in a timely manner; and

     b.  that the applicant be paid the SBP annuity as a result of the
above correction.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101070                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040928                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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