MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 October 2001
	DOCKET NUMBER:   AR2001054868

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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 granted Survivor Benefit Program (SBP) benefits.

APPLICANT STATES:  That she was denied SBP benefits because she was not married to the deceased former service member (FSM) for 1 year prior to his death.  She further states that she should be granted SBP benefits because she lived with the FSM for 2 years before they were married.  In support of her application she submits a copy of the FSM’s death certificate, a copy of her marriage license to the FSM, a copy of the denial letter for SBP benefits from the Defense Finance and Accounting Service (DFAS), documents showing that she had accounts with the FSM prior to their marriage and three third party statements indicating that she and the FSM lived together prior to their marriage.

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

On 18 October 1971, after having served 4 years and 17 days of total active service, the FSM was placed on the Retired List in the pay grade of E-5 by reason of permanent physical disability (40%).  He was married at the time of separation to someone other than the applicant.

On 5 September 1999, the FSM married the applicant and remained married until his death on 5 August 2000.

On 2 February 2001, the DFAS in Denver, Colorado denied the applicant’s claim for a SBP Annuity based on the fact that the applicant had not been married to the FSM for a period of 1 year prior to his death and/or because no children were born of the marriage.

The supporting documents submitted by the applicant show that the applicant and the FSM were engaged in November 1997, that they opened a joint checking account on 27 March 1998, and that they purchased a home together in April 1998. 

Public Law 92-425, the SBP, enacted 21 September 1972, provided, in pertinent part, that military members on active duty could elect to have their Retired Pay reduced to provide for an annuity after death to surviving dependents.  For spouses to be eligible to receive SBP benefits, they had to be lawfully married for a period of 2 years prior to the death of the FSM, unless a child was born of the marriage.  Public Law 94-496, which went into effect 1 October 1976, reduced the period of marriage to 1 year or the birth of a child of the marriage, whichever occurred first. 

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.  While it is indeed unfortunate that the applicant and the FSM were married less than a year before the FSM died, the applicable laws governing SBP entitlements require that a lawful marriage must exist for a period of at least 1 year prior to the death of the eligible service member, unless a child is born of the marriage.  The applicant has failed to show through the evidence of record or the evidence submitted with her application that such was the case. 

3.  While the Board accepts the fact that the applicant lived with the FSM for more than a year prior to their marriage, the law does not recognize or provide for payment of SBP benefits for relationships that do not involve a lawful marriage that is recognized as such, in the State in which they reside.  Accordingly, the Board finds no basis to grant her SBP benefits.

4.  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

__kan___  ___reb__  __rjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2001054868	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  347	137.0100/SBP ELIG	
2.		
3.		
4.		
5.		
6.