RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04176

                              COUNSEL:
  
  		                    HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

She receive the Survivor Benefit Plan (SBP) benefits she is entitled to as widow of her deceased spouse.

APPLICANT CONTENDS THAT:

Per the applicant’s counsel:

1.	In Oct 09, the applicant contacted the Defense Finance and Accounting Service, (DFAS) after her spouse passed away regarding benefits and was denied with a one-sentence explanation.

2.	In Aug 14, a full case for SBP benefits was submitted to the DFAS. 

3.	The DFAS incorrectly determined she was not an eligible   spouse; however, she was validly married to her late spouse from 2003 until his death in 2009.

4.	The DFAS analysis in reaching the denial decision is unclear and was not communicated in writing. 

5.	It appears the DFAS denial is based on a misunderstanding of the law of marriage in the District of Columbia.  

6.	For purposes of the law within the District of Columbia, the applicant was the lawful spouse beginning in 2003 until his death in 2009.  Thus, her eligibility for SBP began in 2004, on the one-year anniversary of their common-law marriage. 

7.	The government position is that the applicant’s eligibility ended (was interrupted) upon formal marriage thus requiring another one-year waiting period from formal marriage in Jul 09; however, the applicant’s spouse passed away in Oct 09.    

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 31 May 66, the applicant was furnished an honorable discharge, and was credited with 20 years, 9 months, and 6 days of active service.   

According to the Defense Finance and Accounting Service (DFAS), pay records reflect the decedent elected spouse only SBP coverage based on full retired pay during the open enrollment period authorized by Public Law 101-189 (1 Apr 92 -31 Mar 93).  The decedent’s spouse died on 27 Feb 03, and SBP costs were suspended at that time.  

According to DFAS, the member and the applicant married (civil ceremony) on 28 Jul 09.  The member died on 4 Oct 09, prior to the first anniversary of their marriage.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s request to receive the decedent’s SBP annuity as the spousal beneficiary is dependent on establishing the applicant and decedent were validly married according to common law in the District of Columbia (D.C.). In this regard, the applicant has not provided documentary evidence from a D.C. court validly establishing the common law marriage between the applicant and decedent in the period from 2003 until the decedent’s death in 2009. 

The applicant and member were legally married on 28 Jul 09; however, he passed away on 4 Oct 09.  Thus, the applicant and member had not been married for at least one-year from their marriage to establish the applicant as the spousal beneficiary of the decedent’s SBP. 

If the Board determines the applicant has sufficiently established a claim as the common-law wife of the decedent according to the laws of the District of Columbia prior to 4 Oct 08, the decedent’s record should be corrected to show he and the applicant were legally married at that time.  Approval should be contingent upon the recovery of appropriate premiums.

A complete copy of the AFPC/DPFFF evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded by letter attaching the previous documents submitted to the board. Counsel’s letter restates the timeline of the applicant’s case and argues again that the applicant was the lawful spouse of the decedent beginning in 2003 with eligibility as spousal beneficiary beginning in 2004. Counsel states the government’s illogical position is that the applicant’s eligibility for SBP ended under common law when the applicant and decedent where formally married.  Counsel’s perspective is the applicant’s eligibility for SBP benefits was established with a valid marriage under common law and continued uninterrupted by the change in form of marriage. (Exhibit E)  

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA reviewed the applicant’s complete case and the AFPC/DPFF evaluation and believes an error was made in not designating the applicant as the SBP beneficiary of the member, her common law and then formerly married spouse. AFPC/JA notes the AFPC/DPFF recommendation to deny the applicant’s request is based solely on the lack of court documentation from the District of Columbia (D.C.) recognizing the applicant’s common law marriage; however, a common law marriage may be claimed even in the absence of a judicial declaration saying one exists.  Thus, a common law widow may claim a deceased spouse’s retirement annuity or death benefit even though a D.C. court did not previously declare the two to be husband and wife. 

The District of Columbia does recognize common law marriage when there is an expression of mutual agreement to be married in words of the present and consummated by cohabitation. The D.C. courts have consistently held where there is evidence a couple lived together and held themselves out to be husband and wife, then such a relationship is established.  The applicant’s evidence does this.  The member and the applicant lived together even though the member was still married.  However, when the member’s spouse passed away on 27 Feb 03 the impediment to their common law marriage no longer existed and they continued to cohabit and live as husband and wife from that date.  Thus, the common law marriage between the member and applicant was effective on 27 Feb 03.  The fact that the applicant and member were later married in a civil ceremony does not invalidate a prior effective marriage under D.C. law.  

The common law marriage between the member and applicant was effective on 27 Feb 03.  There is no evidence presented that the DFAS received notice of this marriage within one year of that time.  As such, per AFI 36-3006 the prior level of SBP coverage should be automatically reinstated for the applicant from the date when she first became an eligible beneficiary and if not timely, delinquent premiums plus interest should be collected.  

AFPC/JA recommends the AFBCMR grant the applicant’s request to have the member’s military records reflect he was married to the  applicant as of 27 Feb 03.  AFPC/JA also recommends the AFBCMR   direct the payment of SBP benefits to the applicant contingent upon the recovery of appropriate premiums.

A complete copy of the AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 13 Dec 16 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  We note the comments of AFPC/DFFF indicating relief should be denied because the applicant did not provide documentary evidence from a District of Columbia (D.C.) court validating the common law marriage of the member and applicant.  However, we adopt the legal opinion of AFPC/JA noting in the D.C a common law marriage may be claimed even in the absence of a judicial declaration saying one exists.  The D.C. courts have consistently held where there is evidence a couple lived together and held themselves out to be husband and wife, then such a relationship is established.  The evidence from the applicant does this. As a result, a common law widow may claim a deceased spouse’s retirement annuity or death benefit even though a D.C. court did not previously declare the two to be husband and wife. Thus, he common law marriage between the member and applicant was effective on 27 Feb 03 and the applicant and member continued to be married from that date until the member’s death. Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the MEMBER be corrected to show he was married to the APPLICANT on 27 Feb 03 and by the effect of law she became his Survivor Benefit Plan (SBP) beneficiary one year from this date and is entitled to SBP benefits contingent on the recoupment of any SBP premiums due.  

The following members of the Board considered AFBCMR Docket Number BC-2015-04176 in Executive Session on 7 Mar 17 under the provisions of AFI36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04176 was considered:

	Exhibit A.  DD Form 149, dated 16 Sep 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFFF, dated 19 Sep 16.
	Exhibit D.  Letter, SAF/MRBR, dated 28 Sep 16.
     Exhibit E.  Letter, Counsel Rebuttal, 28 Oct 16.
     Exhibit F.  Memorandum, AFPC/JA, dated 6 Dec 16.
	Exhibit G.  Letter, SAF/MRBR, dated 28 Sep 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.