RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20050000299


      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             |
|     |Ms. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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
former husband, a former service member (FSM), be corrected to reflect her
entitlement to Survivor Benefit Plan (SBP) benefits.

2.  The applicant states, in effect, that she should be recognized as the
FSM’s legal eligible spouse in order to receive SBP benefits.  She requests
recognition of her common-law marriage to the FSM, which began in October
2001.  She claims the Defense Finance and Accounting Service (DFAS) denied
her claim for SBP benefits because the date of her legal marriage to the
FSM was 18 January 2003, and she was not married to him for one year prior
to his death on
23 November 2003.

3.  The applicant provides the following documents in support of her
application:  Marriage Certificate; Death Certificate; Casualty Worksheet;
Defense Finance and Accounting Service (DFAS) Letter, dated 18 December
2003; Department of Veterans Affairs (VA) Letter, dated 17 September 2004;
2 Supporting Statements Regarding Marriage Forms (VA Form 21-4171); VA
Letter, dated 25 February 2004; and South Carolina Code of Laws Excerpt.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he was released from active duty for the purpose
of length of service retirement on 28 February 1974.  At the time, he held
the rank of command sergeant major (CSM), and had completed 26 years and 26
days of active military service.

2.  On 17 January 1974, during his retirement processing, the FSM completed
a SBP Election Certificate (DD Form 1883).  In this document, he elected to
decline enrollment in the SBP.  The FSM's spouse at the time signed the
Election Certificate acknowledging that she had been informed and counseled
concerning the FSM’s election not to enroll in SBP.

3.  Records show that in October 2001, the FSM and the applicant entered
into a common-law marriage; and on 18 January 2003, they formally married.

4.  A review of DFAS records reveals that on 27 January 2003, the FSM
submitted a request for SBP enrollment, and to add the applicant as his
current spouse and beneficiary for death benefits.

5.  On 23 November 2003, the FSM died, and the applicant submitted a
request to DFAS for SBP benefits.
6.  On 18 December 2003, DFAS informed the applicant that her request for
SBP benefits was denied because she had been married to the FSM for less
than
1 year.

7.  Public Law-425, enacted 21 September 1972, repealed the Retired
Serviceman's Family Protection Plan and established the SBP.  The SBP
provided that military members on active duty could elect to have their
retired
pay reduced to provide for an annuity after death to surviving dependents.
It stipulated that once an election was made, it was irrevocable except in
certain circumstances. It further stated, that if the service member was
married at time of retirement, and declined to enroll in SBP coverage for
his spouse, then later remarried, he could not enroll the new spouse.
Likewise, if the service member had eligible children and declined to
enroll the children at time of retirement, he may not enroll future
children.

8.  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
resided.  Documentation must be provided indicating the state in which the
common-law marriage existed.  At least two notarized statements from
persons who lived nearby (not relatives of either party) stating the two
lived together as
common-law husband and wife should be provided.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be recognized as the FSM's legal eligible
spouse to receive SBP annuity was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  By law, an initial SBP enrollment election is normally irrevocable.  If
a member declines SBP coverage for his spouse at the time of his
retirement, then later remarries, he/she may not enroll a new spouse.

3.  The evidence of record in this case confirms the FSM completed a DD
Form 1883 declining enrollment in the SBP on 17 January 1974, during his
retirement processing.  It further shows his spouse at the time concurred
with this decision.  As a result, he was no longer eligible to participate
in the SBP program when he entered into a common-law marriage with the
applicant in 2001.

4.  The applicant is advised that the reason for denial cited by DFAS was
not the primary reason for her ineligibility.  Because the FSM was married
and yet declined SBP enrollment at the time of his retirement, he was no
longer eligible to participate in the SBP at the time he and the applicant
entered into their common-law marriage.  Had he been eligible to
participate in the program, the common-law marriage (if satisfactorily
documented) would have been recognized for SBP annuity purposes.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA  _  __JAM__  __LMD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000299                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1974/02/28                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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