BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100014354 


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, in effect, the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage. 

2.  The applicant states:

* Her marriage to the FSM in 1972 was not recorded
* In 1995 they discovered their first marriage was not recorded so they got married again in 1996
* The FSM listed her as his legal wife when he retired
* She wants his records corrected to show she was his legal wife when he passed away in 2008
* She is trying to get the FSM's retirement reinstated
* She received several DIC [Dependency and Indemnity Compensation] checks and she needs to pay that back
* She is currently receiving $60.00 per month from the Department of Defense; however, she should be getting much more

3.  The applicant provides:

* Marriage license, dated 21 November 1972
* Marriage license, dated 1 July 1996 
* Marriage certificate, dated 4 July 1996
* FSM's death certificate
* FSM's DD Form 214 (Report of Separation from Active Duty) 
CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the U.S. Navy, the FSM enlisted in the Regular Army on 2 August 1960 and he remained on active duty through continuous reenlistments.    

2.  The FSM’s DA Form 4240 (Data for Payment of Retired Army Personnel), dated 29 August 1977, shows he was married and he had dependent children.  Item 11 (Check one of the following to indicate the type of coverage your desire) on this form is blank.  

3.  The FSM retired on 31 August 1977 in the rank of sergeant first class.  

4.  According to Defense Finance and Accounting Service (DFAS) records, it appears the FSM enrolled in the SBP for spouse coverage at his retirement, naming the applicant as his spouse. 

5.  The FSM and applicant married on 4 July 1996.

6.  DFAS records show the FSM did not submit a written election within one year of his 1996 marriage. 

7.  The FSM died on 7 December 2008.

8.  A DFAS General Counsel finding provided to the Board states, in pertinent part:

* Upon review of all documentation, it was concluded there is no evidence to support a common law marriage between the FSM and applicant prior to his retirement or any time thereafter
* The FSM and applicant have been together since 1972
* While he was not married to the applicant at the time of his retirement, the FSM appears to have claimed her as his spouse for SBP purposes in 1977
* In a letter, dated 11 August 2009, regarding the existence of a common law marriage with the FSM, the applicant stated "Garry and I were together but no common law marriage was in place.  We lived together until our valid marriage in 1996"
* The FSM did not have an eligible SBP beneficiary at his retirement
* The only opportunity for the FSM to elect spouse SBP coverage would have been within one year of his marriage to the applicant or by 4 July 1997
* The FSM was paid up for SBP as of 1 October 2008
* This matter might be proper for consideration by the ABCMR if the Board corrected the record to show that the FSM made an election for spouse SBP within one year of his marriage on 4 July 1996 

9.  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.  

10.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the FSM elected SBP spouse coverage in 1977 naming the applicant as his spouse.  However, it appears at that time he and the applicant were not legally married and there is no evidence of record to support a common law marriage.  The applicant contends they thought they were married but later discovered the marriage was not a matter of public record.  So, in 1996, they married.  

2.  There is no evidence which shows the FSM enrolled in the SBP within one year of their 1996 marriage.    

3.  Regardless of the state of the couple's marital status at retirement, the applicant is her husband's legally recognized widow.  For 30 years, the FSM paid SBP premiums in the belief that he was providing an SBP spouse annuity for the applicant.  Clearly, had he known there was a problem with his original election, he would have taken steps to fix it.  In fact, had he known, he could have elected SBP spouse coverage within one year of their 1996 marriage and requested a refund of at least the previous six years worth of premiums on the grounds that he had no valid spouse beneficiary when he paid those premiums.  

4.  Based on the foregoing, it would be equitable to correct his records to show he enrolled in the SBP for spouse coverage on 1 August 1996.





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 showing:

	a.  the FSM made a written request to participate in the SBP for spouse coverage on 1 August 1996 and the request was accepted and processed by the appropriate office in a timely manner; and 

	b.  the applicant is paid the SBP annuity effective 7 December 2008, the date of the FSM's death.





      _______ _ x  _______   ___
               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)                                         AR20100014354





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ABCMR Record of Proceedings (cont)                                         AR20100014354



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