IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20080017824 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests: 

	a.  That his Survivor Benefit Plan (SBP) account be adjusted to show no beneficiary as of 28 June 1977.

	b.  That he receive a refund of all premiums payments deducted from his SBP account from 28 June 1977 through 26 November 2001.

2.  The applicant states that when he elected to participate in the SBP upon his retirement in 1977, he believed that he was legally married to A____ M__ T_____.  For 31 years SBP premium payments were deducted from his account. On 6 December 2006, his marriage to A____ M__ T_____ was annulled because she was legally married to someone else at the time she married him.   The applicant states that he married L______ S______ in December 2006.  The Defense Finance and Accounting Service (DFAS) credited him with 6 years of premium payments, but refused to pay him the full amount of premium payments as of June 1977, when he made his original election to participate in SBP based on his erroneous belief that he was married.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty), with the period ending 30 June 1977; a State of South Carolina Marriage Certificate, dated 28 July 1969; a Final Judgment from the Superior Court of Richmond County, Georgia, dated 11 December 2006; a State of Georgia 
Marriage Certificate, dated 14 December 2006; a letter from DFAS, dated 2 June 2008 and 24 July 2008; and a letter to DFAS from the applicant's Legal Assistance Attorney, dated 24 June 2008.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 3 May 1956.  

3.  A State of South Carolina Marriage Certificate, dated 28 July 1969, shows the applicant married A____ M__ T_____.

4.  The applicant retired on 30 June 1977.  He elected to participate in the SBP.

5.  A Final Judgment from the Superior Court of Richmond County, Georgia, dated 11 December 2006, shows the applicant initiated a divorce against A____ M__ T_____ after finding that she had a previous marriage that was un-dissolved.  The final judgment states, "It is hereby ordered, adjudged and decree that the purported ceremonial marriage entered into between the Plaintiff and the Defendant herein on July 28, 1969, is hereby declared to be null and void for all purposes whatsoever, the same as if such purported marriage had never taken place."

6.  On 14 December 2006, the applicant married L_____ S______.

7.  A letter from DFAS, dated 2 June 2008, informed the applicant that an adjustment was made in his SBP based on his divorce decree and marriage certificate.  The DFAS letter further stated that an adjustment credit could only be made retroactive to 26 November 2001 due to the 6-year barring statute.  

8.  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.

9.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant believed he had lawfully married A____ M__ T_____ on 28 July 1969.  He retired on 30 June 1977 and elected to participate in the SBP; however, on 11 December 2006, his marriage was declared null and void because of the existence of a previous un-dissolved marriage.

2.  The applicant subsequently married L______ S______ on 14 December 2006.  He was informed by DFAS that the 6-year barring statute prohibited them from refunding his entire premium payments since 30 June 1977.  The applicant received a refund for the premium payments for the period from 26 November 2001 through 31 December 2006.  It is clear that at the time the applicant elected to participate in the SBP upon his retirement on 1 July 1977, he was not aware that his marriage was not legal.  On 6 December 2006 his marriage was declared null and void due to no fault of his own.  Therefore, it is concluded that, as a matter of equity, the applicant should be granted his requested relief.

3.  In view of the circumstances in this case, the applicant's records should be corrected to show he elected not to participate in the SBP until his marriage on 14 December 2006, with entitlement to refund of premiums retroactive to his retirement date of 1 July 1977.









BOARD VOTE:

___x____  ___x____  ___x____  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 elected not to participate in the SBP until his legal marriage on 
14 December 2006; and

   b.  refunding the SBP premiums deducted from his retirement account from
1 July 1977 through 25 November 2006 based on the above correction, to the extent that have not previously been refunded.


															XXX
      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080017824



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ABCMR Record of Proceedings (cont)                                         AR20080017824



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