PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 September 2001                   
	DOCKET NUMBER:   AR2000049584

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that she be determined to be entitled to an annuity based upon the Survivor Benefit Plan (SBP) election of her deceased spouse, a former service member (FSM).

3.  The applicant states in effect, that she and the FSM were married on 
18 September 1999.  In February 2000, after being treated for chronic bronchitis,
the FSM was diagnosed with lung cancer.  He was referred to a specialist in pulmonary diseases and was given a battery of radiation and chemotherapy treatments.  A thoracostomy was also performed for removal of fluid.  On
3 August 2000, the FSM died.  The applicant states, that she realizes that the government was not going to take SBP payments from her husband pay until September 2000, but, if there is any way that the Board would allow her to received an annuity based on the many years that her husband has already paid into SBP, she would be most grateful.  She has only her social security to live on and the bills are many.  The applicant submits a copy of a letter dated 29 August 2000, from the FSM’s doctor, a copy of the marriage certificate and a copy of the death certificate in support of her application.

4.  The applicant’s military records show that on 13 January 1943, the applicant was inducted into the Army of the United States, his services were continuous through extensions and reenlistment.  On 29 February 1963, the FSM retired.  In 1982, during the second open season the FSM elected SBP coverage at a reduced rate for his first spouse.  The FSM’s first spouse died in 1995.

5.  Information obtained from the Defense Finance and Accounting Service, Cleveland, OH (DFAS-CL) shows that there were no deductions for SBP coverage after 1997.

6.  On 18 September 1999, the FSM and the applicant were married.  DFAS-CL
was notified of the FSM remarriage and SBP payments was set to resume on their 1 year anniversary. 

7.  In February 2000, after being treated for chronic bronchitis the FSM was diagnosed with lung cancer.  On 3 August 2000, the FSM died from his illness.

8.  The letter submitted by the applicant from the FSM’s doctor states that the applicant had been treated for chronic bronchitis and it was not until February 
2000, that the FSM was diagnosed with lung cancer.  He further states, that it was his understanding that the applicant was having trouble in collecting benefits due to the misconception that the FSM’s illness was a preexisting condition.

9.  Public Law 92-425, 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.  It required a 2-year waiting period for new spouse eligibility following post-retirement remarriage.  

10.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement remarriage.  The legislative history of the SBP shows that Congress’ purpose in requiring a 2 or 1 year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity.

11.  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.

CONCLUSIONS:

1. The Board notes that the FSM joined the SBP program in 1982, while married to his first spouse.  He paid SBP premiums for 15 years.  DFAS-CL record shows that payments continued until 1997, apparently two years after his first spouse died.

2.  There is no evidence of Government error in this case; however, there is clear evidence to show that the FSM’s intention was to provide an income for his spouse.  The FSM and the applicant were married in 1999, immediately after his marriage he notified DFAS-CL and requested reinstatement into SBP.  The SBP coverage was set to resume on their 1-year anniversary (September 1999) as required by law.  Unfortunately the FSM died (August 2000) just 44 days short of meeting that requirement.

3.  The FSM was treated for bronchitis, he was not diagnosed with lung cancer until February 2000.  There is sufficient evidence in this case for the Board to conclude that the applicant and the FSM entered into a valid marriage – it was not a sham marriage designed to take advantage of the FSM’s physical condition or just to acquire an SBP annuity.  As a matter of equity and fairness the Board believes that justice would be better served by granting the applicant the relief requested as an exception to policy.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant’s 1 year marriage requirement is waived and that she is eligible to receive the SBP annuity to be effective 1 September
2000.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jhl___  __mhm___  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000049584	
SUFFIX		
RECON		
DATE BOARDED	20010918	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.