MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           23 January 2001                  
	DOCKET NUMBER:   AR2000040901

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Thomas E. O’Shaughnessy 		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 the records of her former husband, a former service member (FSM) be corrected to show that she was united with him (in effect, married to him) on 1 January 1968 rather than 1 September 1968. 

APPLICANT STATES:  They had an intimate, mutually supporting relationship from 1 January 1968.  She states that it would be in the interest of justice for the Army to recognize that she was in fact betrothed to the FSM.  They were mutually promised to one another on 1 January 1998.  They cohabited for periods of time (even in her parents’ home) and they were “married” (defined by Webster’s New College Dictionary, 1999, as entering into a close and intimate relationship). They shared love, physical and emotional, support, and money.  She purchased her own engagement and wedding rings and contributed financially to the rental of their first apartment that they shared before they were formally married on 1 September 1968. 
  
The applicant provides a seven-page account of her life, her personal and family history, the times and its effect on her, and her initial meeting and relationship with her future husband, the FSM.

She states that she is attempting to regain her military benefits, especially medical care, because she was permanently disabled during spine surgery on 
15 January 1997. 

The applicant states that she was married to the FSM on 1 September 1968, and remained so for almost thirty years at the time of their divorce, with 19 1/2 years of his 20 years on active duty.  Their divorce was final on 9 January 1998 and because she lacked the 20/20 status she lost her military medical benefits.  

A copy of a certificate of marriage she provides shows that she and the FSM were married on 1 September 1968.  A copy of a divorce decree she provides show that they were divorced on 9 January 1998.

The applicant provides letters from her mother, her sister, her brother, her aunt, and two close friends, all of whom corroborate the applicant’s tale, her state of mind during that period of time, her disobedience to her parents, and her love for the FSM.

The applicant also provides separate correspondence and documents relating to her medical condition; and her requests to the Secretary of the Army and two members of congress (MC) for assistance in the continuance of her military medical care.

The Uniformed Services Former Spouses Protection Act provided certain entitlements to former spouses of military members, among them, medical benefits, provided they meet eligibility requirements.  Former spouses are eligible for space available medical care if they remain unmarried, do not have medical coverage under an employer sponsored health plan, and they meet the requirements of the 20/20/20 rule.  That rules specifies that the former spouse and military member must have been married for 20 years, the member must have performed at least 20 years of retirement creditable service, and at least    20 years of the marriage must have coincided with 20 years of retirement creditable service.

EVIDENCE OF RECORD:  The military records of the FSM show:

He enlisted in the Army on 18 September 1967, completed basic training, and on 27 November 1967 was assigned as a student at Fort Myer, Virginia.  Records show that he married the applicant on 1 September 1968.  The FSM was assigned to Fort Meade in January 1969 and thereafter to Goodfellow Air Force Base in Texas in November of that year, returning to Fort Meade in December.  After a short stint at Arlington Hall Station, he was assigned to a radio research unit in Thailand.  He returned to the United States and requested early separation to attend school.  His request was approved and he was released from active duty on 11 June 1971 in the grade of E-5.

On 27 August 1971 the FSM enlisted in the Army for five years.  He was discharged on 16 November 1972 in order to accept a commission as an Army officer.  He was appointed a second lieutenant on 17 November 1972.  The FSM continued his military service uninterrupted and retired from the Army on           29 February 1988 in the rank of major.  He had 20 years, 8 months, and 24 days of service.  At the time of his retirement he was married to the applicant. 

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.  The applicant had a relationship with the FSM in late 1967, as she has stated, and that relationship continued while she was living at home with her parents.  Albeit their relationship was emotional, physical, and to some extent economical, as the applicant has stated, she was not living with the FSM, nor was she married to him.  She herself stated that she and the former FSM eloped and were married on 1 September 1968.  

2.  Congress set the requirements for medical care eligibility by law.  Whenever a time period like this is established, there will always be people, like the applicant, who miss the mark by a small margin.  Congress established the Board for Correction of Military Records to consider cases like this to see if an error or injustice exists warranting a correction. 

3.  Clearly, no error exists.  The applicant was not married to her husband for the requisite time period established by Congress.

4.  The applicant attempts to make an equitable argument that for six months prior to their marriage she and her husband had a relationship that established a de facto marriage.  The Board finds that this relationship, while sincere and heart-felt, does not rise to the level of a de facto marriage.  They did not cohabit on a daily basis, and did not hold themselves as man and wife, the normal elements of a de facto marriage.

5.  Further, there is no evidence that any action taken by the Army caused this situation.  When the parties married, when the husband retired, and their decision to divorce, do not appear to have been driven by the Army.  While the applicant seems to allege malpractice on the part of Army medical personnel, the facts presented do not prove malpractice. 

6.  In light of the matters discussed above, the Board finds that the applicant has failed to prove, by a preponderance of the evidence, that an error or injustice has occurred.

7.  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

___wtm__  ___teo___  ___lls___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040901	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  346	100.00	
2.		
3.		
4.		
5.		
6.