IN THE CASE OF:    

		BOARD DATE:  16 December 2014	  

		DOCKET NUMBER:  AR20140001957 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her marriage to a deceased former service member (FSM) be recognized as being in excess of the 1 year of marriage required to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity. 

2.  The applicant states that she married the FSM on 6 June 2011; however, they were in a common law relationship since January 1996, when the State of Georgia recognized their union.  She goes on to state the FSM passed away on 29 October 2011 before reaching the 1-year deadline or his 60th birthday.  

3.  The applicant provides a copy of the FSM’s death certificate, DD Form 1883 (SBP Election Certificate), marriage license, letter from her landlord, and six hand-written (un-notarized) letters regarding the issue of common-law cohabitation.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Georgia Army National Guard (GAARNG) in the pay grade of E-4 when he was discharged from the GAARNG and was transferred to the U.S. Army Reserve Control Group (Retired) effective 1 January 1998.

2.  The DD Form 1883 provided by the applicant with her application shows the FSM completed that form on 15 September 1998 electing spouse and children full immediate coverage (Option C).  The applicant was not the spouse indicated on that form.

3.  The applicant and the FSM were married on 7 June 2011 and the FSM died on 29 October 2011.

4.  RCSBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members.  As a Federal Government insurance program, mainly subsidized by participant’s premiums, it is strictly governed by Federal Statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn RCSBP through their service – they earn the right to participate in RCSBP.  As with any private insurance endeavor, it is incumbent upon individuals to timely apply to participate.

5.  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 marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

6.  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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she should be deemed legally married to the FSM for over 1 year and granted an RCSBP annuity has been noted.

2.  The evidence shows that on 15 September 1998, the FSM submitted a 
DD Form 1883 and indicated at that time he was married to a spouse other than the applicant.  Therefore, it is not possible for the applicant and the FSM to have entered into a valid common law marriage in 1996.

3.  Accordingly, in the absence of evidence showing the FSM’s formal marriage was dissolved prior to 1996 there appears to be no basis to grant the applicant’s request.  As she remains statutorily barred from RCSBP/SBP eligibility due to the fact that her recognized marriage to the FSM was less than 1 year in length.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20140001957



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ABCMR Record of Proceedings (cont)                                         AR20140001957



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