ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20180013941 APPLICANT REQUESTS: to add the spouse of the deceased former service member (FSM) to his Reserve Component Survivors Benefit Plan (RCSBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * denial from Human Resources Command (HRC) * Retirement points * Application for Retired Pay Benefits * NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service) * Discharge Orders * DD Form 214 (Certificate of Discharge or Release from Active Duty) * Survivor Benefit Plan Election Certificate * State of Alabama Certificate of Marriage * State of Alabama Certificate of Death * Alabama National Guard Casualty Affairs/Survivor Outreach Services packet * letter from Survivor Outreach Services coordinator * Social Security Card * Claim for Unpaid Compensation of Deceased Member of the Uniformed Services * four Support Statements Regarding Marriage * 20 year letter FACTS: 1. The applicant, the spouse of the FSM, states: * she requests her application for the SBP annuity based on the military service of her late husband, the FSM, be reinstated * the FSM retired from the Alabama Army National Guard (ARNG) on 17 May 1998 * he was 47 years of age when he retired * the FSM died on 7 September 2003 * he was 52 years of age at the time of his death * she and the FSM were in a common law marriage from 1996 until one month prior to the death of the FSM * they were married on 22 August 2003 * the marriage took place because the FSM believed his wife would benefit from his military retirement once eligible * the FSM was not married at the time of his retirement * she recently became aware the FSM was eligible for retirement benefits upon reaching the age of 60 * she is requesting to be recognized as the FMS's common law marriage partner * they had intent on marrying but just did not do so until a month prior to his death 2. In a self-authored letter the applicant states: * her husband reached his 20 year eligibility to retire and signed his DD Form 1883 (Survivor Benefit Plan Election Certificate) on 22 May 1995 * the FSM was unmarried at the time and selected children only and elected Option C (immediate coverage) * this means the benefit would have been paid upon the death of the FSM * the FSM began experiencing issues with cancer and experienced problems working * her husband, the FSM, spent many days seeing doctors trying to alleviate the medical issues * the preoccupation with medical problems dominated their lives * the FSM died on 7 September 2003 from Acute Myocardial Infarction due to lung cancer * it wasn't until she received the denial letter from HRC that she learned the impact and responsibility to report their marriage * this was also when she learned about the time limits allowed for reporting the marriage * the FSM was certain she would draw a portion of his retirement upon his death through the SBP * she cannot attest if the FSM absolutely knew he had to update his retirement form regarding their marriage * his thought process was, more likely than not, since he signed up for the SBP for his children to be automatically paid upon his death and since his children were above the age of maturity, she would be the recipient of the benefit * otherwise he would not have been as exacting regarding the availability of the benefit to her * the FSM was discharged on 17 May 1998 * they were in a common law marriage greater than 7 years and legally married on 22 August 2003 * the FSM died on 7 September 2003 * at the time of his death, he had not reached the age of 60 * he would not have completed any retirement paperwork nor resubmitted the form to change his SBP * she begs the Board to please reverse the denial from HRC regarding the SBP claim and make the benefit payable to her 3. The FSM received his 20 year letter on 23 March 1995 notifying him he would be eligible for retired pay at the age of 60. The FSM signed a SBP election certificate on 22 May 1995 electing coverage for his children only. 4. The applicant and the FSM were legally married on 22 August 2003. The applicant provides four Supporting Statements Regarding Marriage, three state the applicant and FSM have lived together as man and wife from 1996 until the FSM's death. One letter states the applicant and FSM lived together as man and wife from 1999 until the FSM's death. 5. The FSM died on 7 September 2003. The applicant received a letter from HRC on 30 Jul 2018. The letter denied the applicant's request for SBP annuity based on Title 31 United States Code Section 3702, stating any claim against the government must be submitted within six years. The statute of limitation for her claim was reached on 7 September 2009. 6. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married when they are eligible to elect SBP benefits and later becomes married may elect to participate in SBP upon their marriage. They have one year after the date of marriage to make an election. 7. The FSM's date of birth is . His 60th birthday was on . He died when he was 52 years of age. BOARD DISCUSSION: After reviewing the application and all supporting evidence, by a split decision, the Board found that full relief was warranted. The Board majority found that the FSM and the applicant had an established common-law marriage since 1996 under Alabama law and were legally married in August 2003 according to the laws of Alabama at the time of the FSM’s death in September 2003. Two board members felt that two statements attesting to common law marriage were sufficient to prove a common law marriage existed. The dissenting board member found that there was insufficient evidence that the FSM and the applicant were in a common law marriage and therefore the applicant was not entitled to the SBP; the dissenting board member wanted evidence in the form of joint bank statements and joint utility bills. The Board majority found the applicant’s statement compelling that although the FSM elected child-only SBP coverage on 22 May 1995 when his children were 20 and 17 years old, her deceased spouse had believed that the child-only SBP would automatically convert to spouse coverage when the children aged out of the program as at the applicant’s retirement date (21 October 2011), the children would have aged out of coverage; had the FSM known otherwise, he would have submitted the required change in election within one year of the beginning of the start of their common law marriage in 1996. The Board found that the preponderance of the evidence indicates that because the applicant and the FSM had been in a common law marriage for more than seven years, had started living together as man and wife in 1996 and were legally married on 22 August 2003, their common law marriage began on/about 21 August 1996. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant elected his SBP election to cover his spouse on 20 August 1997 (within one year of the beginning of his common-law marriage) and the request was received and processed by the appropriate office in a timely manner. 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. REFERENCES: 1. Public Law 95-397, the Reserve Component SBP, 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. 2. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013941 2