RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01717

XXXXXXXXXXX (DECeased)	COUNSEL: NONE
	
XXXXXXXXXXXXX (APPLICANT)	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her deceased spouse’s record be changed to show he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

She was told that she is not eligible for SBP because she and her husband were not legally married for a full 12 months before his death. Though it was her late husband’s expectation that he would not die before she would become eligible as his legal wedded wife, he certainly intended that she would benefit from his SBP.  She recently learned that their 2013 common law marriage under XXX law makes her eligible for SBP, even if they had not entered into a traditional marriage.   On 21 July 2013, she and her husband had a public commitment service in their church and began living together as husband and wife, until his death in 2019.  They lived in XXX when they began their common law marriage in 2013.  XXX law recognizes them as a married couple since they agreed to live together as a married couple and represented themselves as a married couple.  Her common law marriage should be recognized, which would make her eligible for SBP.

In support of her request, the applicant provides of a letter from the officiant who performed the  commitment ceremony between her and her late husband on 21 July 2013, a church bulletin, a letter from her late husband’s oncologist, shared bank statements, a deed, and other documents related to her appeal.

 The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to the documentation provided by the applicant and analysis of the facts the following information is provided:  

The applicant is the surviving spouse of a retired Air Force captain (O-3).

On 1 November 1991, according to Special Orders AC-XXXX, dated 17 November 1990, the decedent retired from the Regular Air Force.  

On 21 July 2013, according to SBP Marital Status Affidavit, notarized on 23 June 2020, provided by the applicant, she married the decedent.

On 11 January 2018, according to a marriage certificate, provided by the applicant, she married the decedent.

On 29 August 2018, according to a Certificate of Death, provided by the applicant, the service member passed away.

On 11 March 2020, the officiant who performed the “Blessing of Relationship” ceremony verified she performed a ceremony in which the applicant and decedent committed to each other as any husband and wife.

On 18 May 2020, the Board sent the applicant the following standard forms, in order to establish whether there are persons with competing interests in the case or who should receive notice of the requested correction to the record:  SBP Marital Status Affidavit (Deceased Retiree). 

On 29 June 2020, the applicant returned the required completed affidavits. 

For more information, see the excerpt of the deceased service member’s record at Exhibit B and the advisories at Exhibits C, E, and F.

APPLICABLE AUTHORITY

AFI 36-3026, Volume 1, Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel. A spouse through either legal or common law marriage under this instruction, entitle spouses to equal benefits and privileges. To be valid, common law marriages have been entered into in a state that recognizes common law marriages. Common law marriages require the sponsor or spouse to prove that the relationship is valid (e.g., tax returns, bank statements, statements from disinterested parties attesting the couple was holding themselves out as husband and wife).  

XXX Family Code, Section 2.401. Proof of Informal [Common Law] Marriage.  A common law marriage must have three elements:  (1) The couple has agreed to be married; and (2) The couple has agreed to live together as husband and wife; (3) the couple has represented themselves as a married couple. 

DoD 7000.14-R, Volume 7B, paragraph 430204(A).  “In the case of a member electing SBP or RCSBP coverage for a spouse who was not married to the member at the time the member became eligible for retired pay, the surviving spouse must have been married to the member for at least one-year immediately prior to the member’s death or be the parent of issue by that marriage to be an eligible beneficiary.”  

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application. The applicant was not married to the former member for one full year prior to his death and there is no provision that authorizes waiver of that criteria, absent the birth of a child before the first anniversary of the marriage.  It would be contrary to the letter and intent of the law, as well as inequitable to other survivors similarly situated, to approve the applicant’s request.  The SBP is a voluntary program similar to commercial life insurance by which retirees can elect to participate and pay the associated premiums to ensure their eligible dependents receive a monthly annuity following the member’s death. To be considered eligible for the SBP annuity, Title 10, United States Code, Section 1447 (7A), defines a widow as the surviving wife of a person “who was married to him for at least one year immediately before his death.” In the event the new spouse becomes a parent of a child born sooner than one year after the date of the marriage, the spouse’s eligibility begins on the date of the child’s birth. 

Defense Enrollment Eligibility Reporting System (DEERS) records reflect that the decedent was married to his former spouse, had dependent children, and elected Spouse and Child SBP coverage prior to his 1 November 1999 retirement.  The marriage ended in divorce on 27 August 2004.  The applicant advises that she and the decedent entered into a common-law marriage on 21 July 2013, however, DEERS reflects the date of spousal eligibility as 11 January 2018, the date of their legal, traditional marriage. Also after that date, the decedent sent the Defense Finance and Accounting Service (DFAS) a letter requesting SBP coverage be established on the applicant’s behalf.  Unfortunately, he died on 29 August 2018, five months before the first year anniversary of their marriage. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 March 2021, for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DPFFF recommends granting the application. There is no evidence of Air Force error in this case; however, if the Board determines the applicant has sufficiently established her claim as the common-law wife of the decedent according to the laws of the State of XXX prior to           29 August 2017, the decedent’s record should be corrected to show he and the applicant were legally married at that time.  Approval should be contingent upon the recovery of appropriate premiums.

The complete advisory opinion is at Exhibit E.

AFPC/JA recommends granting the application.  Following a review of the application, case file, and AFPC/DPFFF advisory, they concur with the finding that the Air Force processed this case correctly based on the information available at the time.  However, the applicant has sufficiently established a claim for a common law marriage to the decedent according to the laws of the state of XXX. The agreement to get married was publically made on 23 July 2013 in XXX. The actual date in XXX would have occurred on the first date they “lived together” in the decedent’s home following that agreement. From the record, they know the decedent owned the home until          20 February 2014, therefore the date of the marriage would have been sometime between 23 July 2013 and 20 February 2014. Even if the latest date was established as the new date of the marriage, it would make the applicant an eligible spouse for purposes of receiving the SBP benefits for which the decedent paid premiums and clearly communicated his intent and desire that she receive. Therefore, they recommend that the date of marriage be appropriately corrected and the applicant’s request for SBP benefits be processed.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 1 November 2021, for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The applicant contends XXX law recognizes her and the decedent as a married couple since they agreed to live together as a married couple and represented themselves as a married couple.  Her common law marriage should be recognized, which would make her eligible for SBP.  The Board concurs with the rationale and recommendation of AFPC/DPFFF and AFPC/JA and finds a preponderance of the evidence substantiates the applicant’s contentions.  In this regard, the Board notes there is sufficient evidence that the common law marriage took place in XXX in 2013 and should be recognized.  Based on the date of marriage in 2013, the decedent and applicant were married for more than one year before his death, making the applicant eligible for SBP.  Therefore, the Board recommends correcting the decedent’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to MEMBER be corrected (as an exception to policy) to show that: 

a. He was married on 21 July 2013; that this correction is of limited scope so as to only affect his Air Force records for the sole purpose of affording the relief to rectify the injustice in this case; and that this correction will have no impact on his civil records.

b. On 21 July 2013, he submitted a timely and effective election for spouse coverage under the Survivor Benefit Plan, based on the previous full level of retired pay, naming APPLICANT as the eligible beneficiary.

c. On 29 August 2018, APPLICANT submitted a timely and effective claim for survivor benefit annuity.

d. Approval should be contingent upon recovery of Survivor Benefit Plan premiums.  If applicable, the monthly survivor benefit annuity will be applied to the premium debt until the total amount of premiums owed is recovered.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-01717 in Executive Session on 2 December 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 April 2020.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DPFFF, dated 25 March 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 29 March 2021.
Exhibit E:	Advisory, AFPC/DPFFF, dated 16 August 2021.
Exhibit F:	Advisory, AFPC/JA, dated 28 September 2021.
Exhibit G:	Advisory Notification, SAF/MRBC to Applicant, dated 1 November 2021.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.