MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000039684

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  That she be determined to be an eligible beneficiary of the Reserve Component Survivor Benefit Plan (RCSBP) of her deceased spouse, a former service member (FSM).

APPLICANT STATES:  That she and the FSM lived together since July 1997 and were married in May 1999.  It was at that time that he took measures to assure that his retirement benefits would be assigned to her as his surviving wife.  The FSM passed away very suddenly on 10 January 2000 of a heart attack.  She feels the Army has chosen to ignore the FSM’s request.  An Army Reserve Personnel Command letter dated 15 February 2000 is provided as supporting evidence. 

EVIDENCE OF RECORD:  The FSM's military records show:

He was born on 19 July 1943.  After having had prior active duty, he enlisted in the Army National Guard on 13 August 1981.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 26 April 1993.  On                   19 September 1993, he enrolled in the RCSBP for spouse only coverage, option C, full base amount.

On an unknown date, the FSM divorced.

The FSM and the applicant married on 29 May 1999.  The FSM died on             10 January 2000.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  There was a two-year waiting period requirement for new spouse eligibility following post-retirement remarriage.

Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, reduced the waiting period for a new spouse’s eligibility to one year following post-retirement remarriage.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

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 applicant has failed to submit evidence that would satisfy this requirement.

2.  Sudden death, whether due to natural causes such as a heart attack or due to an accident, is a possibility for anyone of any age.  The applicant was automatically the FSM’s RCSBP beneficiary upon their marriage.  However, the law requires a one-year waiting period following a post-retirement remarriage to obtain benefits entitlement.  Unfortunately, the FSM and the applicant delayed too long in marrying and the applicant fell 7 months short of meeting that requirement.

3.  The Board notes that the applicant contends she and the FSM lived together since July 1997.  The State of Iowa recognizes common law marriages.  If the applicant can provide evidence of when the FSM divorced, evidence (such as income tax returns) to show they lived together as husband and wife, and evidence that they met all state requirements concerning the recognition of common law marriages, the Board may reconsider her application upon request.

4.  Regrettably, 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

__mdm___  __clg___  __ena___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039684	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.