MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March 1999                   
	DOCKET NUMBER:   AR1999022979

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of her previous application to correct the records of her deceased spouse, a former service member (FSM), by granting her a Survivor Benefit Plan (SBP) annuity based upon the SBP election of the FSM.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  There is a substantial government administrative error which demands relief.  The government failed to provide the FSM with the proper guidance on his election options and the consequences of the same.  The applicant and the FSM were married for almost two years prior to his death under the legally recognized concept of a “common law” marriage.  The FSM manifested his intent to provide for the applicant by completing the DD Form 1883.  The advisory opinion erroneously concluded that the FSM was divorced at the time he made his 10 August 1992 SBP election.  In fact, he was divorced two years later on 18 July 1994.  His only intention on 10 August 1992 was to add his youngest son to his SBP.  The fact that this youngest son was not identified with the rest of the children on the initial election form raises the question of whether the SBP administrator failed to advise him on how to properly complete the form. The New Jersey National Guard and the Army Reserve Personnel Center (ARPERCEN) failed to inform the FSM of the proper options available to him and failed to inform him that he made an unauthorized election, resulting in an injustice to the applicant.  Also, if the FSM’s and applicant’s relationship from    18 July 1994 (date of his divorce) to 6 July 1996 (date of his death) were scrutinized by a court of competent jurisdiction, he believes that there would be a finding of a common law marriage.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 30 September 1998 (COPY ATTACHED).

The applicant provides a copy of the FSM’s divorce decree from his former spouse to show they divorced on 18 July 1994, not on 14 July 1992 as stated in the advisory opinion.  This shows that the FSM did not submit the 10 August 1992 DD Form 1883 with the intention of providing SBP for his former spouse, but only to delete his eldest son, who was no longer eligible for SBP, and to add his youngest son, who was erroneously omitted from his original DD Form 1883.

Title 10, U. S. Code, section 1447(7), defines “widow” to mean the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay was married to him for at least one year immediately before his death or is the mother of issue by that marriage.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

2.  The applicant does not meet the law’s definition of “widow.”  Counsel contends the applicant and the FSM were married for almost two years prior to his death under the legally recognized concept of a “common law” marriage yet he provides no legal evidence that the State of New Jersey recognized their status as a “common law” marriage.

3.  Counsel contends that the advisory opinion erroneously concluded that the FSM was divorced at the time he made his 10 August 1992 SBP election. It was counsel who stated in his 27 January 1998 memorandum enclosure to the DD Form 149 that the FSM was granted a divorce on 14 July 1992.

4.  Counsel contends the fact that the FSM’s youngest son was not identified with the rest of the children on the initial election form raises the question of whether the SBP administrator failed to advise him on how to properly complete the form.
Since everything else on the form was filled out properly, the Board believes that at most it was a minor oversight on the part of the SBP administrator or FSM or a lack of initiative on the part of the FSM not to include a continuation sheet.  

5.  Counsel contends that the New Jersey National Guard and the Army Reserve Personnel Center (ARPERCEN) failed to inform the FSM of the proper options available to him and failed to inform him that he made an unauthorized election (in 1992), resulting in an injustice to the applicant.  The Board notes that the FSM was a colonel in 1992.  He had a responsibility to himself, at the time his marital status was changing and therefore his financial plans for the future would change, to research all avenues of information available to him prior to making a decision that would affect his financial status.  The Army has paid, full-time retirement services office (RSO) staffs.  Two of these RSOs are located in New Jersey, one at Fort Dix and one at Fort Monmouth.  The FSM was eligible to utilize either of these two RSOs to become fully informed of the kind of SBP elections he could or could not make.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__CWB___  ___EB___  __RJW__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022979	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.