ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:

		BOARD DATE:  29 April 2019

		DOCKET NUMBER:  AR20170000425


APPLICANT REQUESTS:

* correction of his late wife's (a deceased former service member (FSM)) records to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) for spouse-only coverage in a timely manner
* recognition of their valid 7-year Iowa common law marriage

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* Self-Authored Letter, dated 5 November 2016
* Warranty Deed (Corporate Grantor), dated 25 June 2015
* Grandview Homes Lease and Agreement, dated 14 July 2015
* SGLV Form 8286 (Servicemember's Group Life Insurance (SGLI) Election and Certificate), dated 2 September 2016
* DD Form 93 (Record of Emergency Data), dated 2 September 2016
* State of Iowa Department of Public Health Certificate of Death, issued 6 October 2016
* Letter, U.S. Army Human Resources Command (HRC), dated 19 October 2016
* Internet Guide, Avvo, posted 14 February 2013, title:  Common Law Marriage in Iowa
* four Letters of Support, dated 24 October 2016, 25 October 2016, 28 October 2016, and 1 November 2016
* Historical Account Relationship, Midwest Heritage Bank, Federal Savings Bank, printed 27 October 2016

FACTS:

1.  The applicant states:

	a.  His late wife, the deceased FSM, designated him as the recipient of her RCSBP.

	b.  HRC denied his application for the SBP annuity because their marriage ceremony took place less than 1 year before his late wife's death.

	c.  He and the FSM lived together as husband and wife for 7 years prior to her death and considered themselves married.

	d.  They purchased joint property together, signed home leases, had joint bank accounts, and she designated him as the beneficiary of her SGLI.

	e.  The State of Iowa recognizes common law marriages and he enclosed multiple statements from friends and co-workers, stating he and the FSM were known to them as husband and wife.  The conditions for a common law marriage to exist in Iowa are as follows:  both spouses have an agreement that they are married, both spouses live together continuously as partners, and both spouses act like a married couple.

	f.  The FSM was Catholic and a church wedding was very important to her.  The FSM had been battling breast cancer for 3 years prior to passing away.  They tried to arrange a Catholic wedding ceremony each time she went into remission.  On 2 September 2016, the FSM's oncologist informed her that she only had weeks to live.  Although they believed themselves to be married under Iowa common law, the FSM wanted a church wedding.  They were married at home on 6 September 2016.

	g.  The FSM served faithfully for 24 years, deployed to Iraq, and never stopped loving her country.

	h.  It was the FSM's wish that her retirement annuity would pass to him.

2.  The FSM enlisted in the U.S. Army Reserve on 10 November 1986.

3.  The FSM was issued a Notification of Eligibility for Retired pay at Age 60 (20-Year Letter) on 15 December 2011, informing her that she completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60.  She was also advised that:

	a.  Public Law 95-397, dated 30 September 1978, created the RCSBP, in which she was now entitled to participate.  The RCSBP is the sole means of protecting retired pay entitlement.

	b.  Public Law 106-398, dated 30 October 2000, required that upon receipt of the 
20-year letter, a qualified Reserve Component member who was married would automatically be enrolled in the RCSBP under Option C, spouse and child(ren) coverage, based on full retired pay, unless spouse concurrence was provided (and witnessed by a notary) to allow one of the following elections:

* Option A (defer enrollment until age 60 when the member applies for retired pay – under this option, the member's survivors will not be entitled to any financial benefit based on the member's retired pay if the member dies before he/she is officially retired and in receipt of retired pay)
* Option B (enroll now with the death annuity paid to the member's designated beneficiary when the member would have been age 60, if he/she dies before age 60)
* Option C (enroll with the death annuity paid immediately upon notification of the member's death, regardless of the member's age)

	c.  She must notify HRC of her decision within 90 days of the date of the 20-year letter, using the DD Form 2656-5 (RCSBP Election Certificate).

4.  The applicant provided:

* a lease and agreement, dated 14 July 2015, showing he and the FSM were tenants
* the warranty deed for property, dated 9 September 2015, showing he and the FSM were grantees

5.  The FSM completed a DD Form 93, dated 2 September 2016, showing she designated the applicant as the sole beneficiary for the death gratuity and unpaid pay/allowances (100 percent).

6.  The FSM completed an SGLI election on 2 September 2016, naming the applicant as one of the primary beneficiaries (30 percent) for her SGLI.

7.  The applicant and the FSM married on 6 September 2016.

8.  The FSM died on 26 September 2016.  Her death certificate shows she and the applicant were married on 6 September 2016 and named the applicant as the informant.

9.  On 19 October 2016, HRC denied the applicant's application for the FSM's SBP annuity and informed him that Title 10, U.S. Code, sections 1448-1455, state the surviving spouse must be married to the deceased Soldier for 1 full year prior to the Soldier's death.  HRC records show the FSM died prior to the 1-year anniversary of the ceremonial marriage.

10.  The applicant provided an Internet guide from Avvo.com regarding Iowa common law marriage.  The guide states the following three elements must exist:

* present intent and agreement to be married
* continuous cohabitation
* public declaration (holding out) that the parties are husband and wife

11.  The FSM completed a DD Form 2656-6 (RCSBP Election Certificate), dated September 2016 (no day indicated), showing in:

* item 9a (Spouse's Name  – she named the applicant
* item 12 (Options) – she elected Option C (Immediate Annuity), which provided an immediate annuity beginning on the day after the date of her death, whether before or after age 60
* item 13 (Type of Coverage) – she elected spouse-only coverage
* item 14 (Level of Coverage) – she elected full retired pay

12.  The applicant provided bank statements, printed 27 October 2016, showing him and the FSM as joint owners.

13.  The applicant provided four letters from friends and co-workers, dated 24 October 2016 through 1 November 2016, describing:

* their relationship to the applicant and the FSM
* how long they knew the applicant and the FSM
* the applicant and the FSM were known as husband and wife
* the care given to the FSM by the applicant during the years of her illness

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, the Board found that full relief was warranted.  The Board found that the FSM and the applicant had an established common-law marriage according to the laws of Iowa at the time of the FSM’s death. The applicant elected spouse coverage of SBP when the applicant got her 20-year letter. The DD Form 2656 reflecting that election was in her file. At her death, she had an eligible spouse beneficiary (to whom she was married via a common law marriage for over 7 years) and he should receive the annuity as contemplated by applicable law. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she properly elected the Survivor Benefit Plan (SBP) per her DD Form 2656 signed in September 2016 and her election was received and processed in a timely manner by the appropriate DFAS office.  


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.


ADMINISTRATIVE NOTE(S):  not applicable.

REFERENCES:

1.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either option B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement.

2.  Title 10, U.S. Code, section 1448 provides that a member who is married or has a dependent child, and who receives notice of eligibility for retired pay, is automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence, if required) not to participate or to defer the decision or delay coverage before the end of the 90-day period.

3.  Department of Defense Financial Management Regulation 7000.14-R, chapter 54, section 5403, provides that a spouse, including the spouse of a common-law marriage, is an eligible beneficiary if:

	a.  married to the member on the date the member became eligible to participate in RCSBP and was continuously married to the member through the date the member died or

	b.  married to the member for at least 1 year after the date the member became eligible to participate in RCSBP; the election to provide spouse coverage was received within 1 year of the marriage; and they were continuously married from the date of the election through the date the member died.

//NOTHING FOLLOWS//



ABCMR Record of Proceedings (cont)	 AR20170000425



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