BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150016325 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ __x______ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150016325 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150016325 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's deceased former husband's SGLV Form 8286 (Servicemembers' Group Life Insurance (SGLI) Election and Certificate), dated 29 July 2009, to show he elected her as his beneficiary. Counsel also requests a personal appearance before the Board, if warranted. 2. Counsel states: a.  The former service member's (FSM's) spouse failed to receive notice of the change of beneficiary for his SGLI and this has left her with marital debts and debts related to his death with an unexpected lack of insurance proceeds to help satisfy these debts. b.  Changing the beneficiary was in direct violation of State restraining orders issued in Case Number 05 DR XXX, Court of Common Pleas Division of Domestic Relations, Ashtabula County, Ohio. 3. Counsel provides: * SGLV Form 8286, dated 5 December 2005 * DD Form 293 (Record of Emergency Data), dated 5 December 2005 * death certificate and supplementary medical certification * restraining orders from Ashtabula County, OH CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 27 January 1986, the applicant and FSM married. 3. Having prior commissioned service in the Regular Army and U.S. Army Reserve, the FSM was appointed as a major in the Ohio Army National Guard (OHARNG) on 25 June 1994. On 26 June 1996, he was appointed as a warrant officer one. 4. On 25 August 2005, the FSM and applicant legally separated. 5. Counsel provided a copy of the FSM's restraining orders, dated 23 August 2005, from the Court of Common Pleas Division of Domestic Relations, Ashtabula County, OH, stating, in part, that neither party could change beneficiary information on their respective insurances. 6. On 28 November 2005, the FSM was promoted to chief warrant officer three. 7. The FSM's SGLV Form 8286, dated 5 December 2005, shows the applicant, K____ M____ M____, as the principal beneficiary and the FSM's grandson, T____ P____ E____, as the contingent beneficiary. 8. The FSM's DD Form 93, dated 5 December 2005, listed the applicant as his spouse and shows in: * item 9a (Beneficiary for Death Gratuity) – J____ P. M____/mother * item 10a (Beneficiary(ies) for Unpaid Pay/Allowances) – K____ M. M____/spouse (applicant) 9. The FSM's DD Form 93, dated 7 March 2009, shows in: * item 4a (Spouse Name) – M____, K____ M. (applicant) * item 11a (Beneficiary(ies) for Death Gratuity) – * J____ P____ M____/mother – 25 percent * A____ M____ M____/sister – 25 percent * S____ E____ M____/brother – 25 percent * National Rifle Association/organization – 12.5 percent * Special Operations Warrior Foundation/organization – 12.5 percent * item 12a (Beneficiary(ies) for Unpaid Pay/Allowances – S____ E____ M____/brother 10. The FSM's records are void of any evidence his spouse was notified she was not listed as the beneficiary on his DD Form 93, dated 7 March 2009. 11. The FSM's SGLV Form 8286, dated 29 July 2009, shows his brother, S____ E____ M____, as his principal beneficiary and his mother, J____ P. M____, as the contingent beneficiary. 12. On 20 October 2010, the FSM sustained fatal injuries while performing an airborne operation. He died from his injuries on 24 October 2010 while still married to the applicant. 13. DFAS disbursed the death gratuity in accordance with Department of Defense Financial Management Regulation (DODFMR), volume 7A, chapter 36, subparagraph 360103.B, on an unknown date. 14. The applicant communicated with DFAS, the OHARNG, OHARNG Office of the Inspector General, and her Congressional representative about obtaining the FSM's full death gratuity in the amount of $100,000.00. 15. On 5 September 2012, the OHARNG Office of the Inspector General advised the applicant: a.  The OHARNG leadership declined to initiate an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation regarding removal of her name from the FSM's DD Form 93 on 7 March 2012 (should read 2009). She clearly should have been notified; however, this had no impact or marital effect on the disbursement of the death gratuity. b.  DFAS disbursed the death gratuity in accordance with DODFMR, volume 7a, chapter 36, subparagraph 360103.B, which stated that "If a member does not make a designation under subparagraph 360103.A or designates only a portion of the amount payable, then the remaining amount of the death gratuity not covered by a designation will be paid as follows:  1. To the surviving spouse of the member, if any." This explained why she received the initial 25 percent of the death gratuity. c.  The Office of General Counsel, the legal arm of DFAS, ruled the FSM did not specify the death gratuity amounts in 10-percent increments as required by the DODFMR. Therefore, DFAS awarded her an additional 15 percent. This was done to meet legal requirements while to meet the intentions of the FSM. The DFAS decision was final and her case was closed. 16. On 27 November 2013, the Chief, Personnel Policy Division, National Guard Bureau (NGB), provided a related advisory opinion wherein she recommended denial of the applicant's request to the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130020846 for correction of the FSM's DD Form 93, dated 7 March 2009, to show she was the beneficiary for the death gratuity. The advisory official further stated: a.  The applicant was pursuing correction of the FSM's records in order to obtain $60,000.00 she believed the government owed her. The allegation resulted from the Army processing an invalid DD Form 93 which did not meet the requirements established by Federal law (Title 10, U.S. Code, section 1477), which stated, "If a Service member does not make a designation or designates only a portion of the amount payable, the amount of death gratuity not covered by a designation shall be paid to the surviving spouse of the service member, dependent, surviving parent or appointed executor of the estate." b.  In 2005, the FSM filed for divorce from the applicant. In August 2005, the FSM obtained court restraining orders stating that neither party could change beneficiary information on his or her insurances. The death benefit is an entitlement, not insurance. The only insurance the military provides other than TRICARE healthcare is SGLI. Soldiers who want SGLI coverage have to pay premiums. Soldiers do not pay for the death gratuity because it is an entitlement. At the time of the court order, the DD Form 93 on record was dated 5 February 2005. The FSM signed and validated his DD Form 93 twice more after that date and prior to his death. The first time he changed his DD Form 93 was on 5 December 2005 and the second time was on 7 March 2009. The DD Form 93, dated 7 March 2009, removed the applicant as a beneficiary. c.  In accordance with Title 10, U.S. Code, section 1477, she was entitled to notification of being removed from the DD Form 93. The DD Form 93 also designated increments that were outside the 10-percent increments specified by law. Validating and signing the DD Form 93 is required by the Army on an annual schedule, usually during the Soldier's birth month. d.  The applicant learned she was not listed on the DD Form 93 as a beneficiary to receive any of the death gratuity valued at $100,000.00. The FSM designated the following disbursements: * 25 percent to his brother, mother, and sister * 12.5 percent to the National Rifle Association * 12.5 percent to the Special Operations Warrior Foundation e.  The applicant was only entitled to the 25 percent that was designated to non-persons (organizations). In November 2010, she received notification that she would receive the $25,000.00 allotted to the organizations. She contacted DFAS about the remaining death gratuity benefit in the amount of $75,000.00. f.  In November 2011, she filed a Congressional inquiry through her representative's office in Ohio. Within in 2 months, she received a check for $15,000.00. g.  According to Federal law, the death gratuity benefit is issued in increments of 10 percent ($10,000.00). DFAS, when made aware of the error in distributions, rectified the situation by sending the additional 15 percent ($15,000.00) to the applicant. The new distribution was 40 percent ($40,000.00) to the applicant and 20 percent (20,000) to the FSM's brother, mother, and sister, respectively. h.  DFAS twice acknowledged and paid the applicant according to law. She was seeking compensation for the remaining 60 percent ($60,000.00) of the death gratuity because she thought she was entitled to the entire 100 percent ($100,000.00). According to the facts presented, she received compensation in the proper amounts as stipulated by Title 10, U.S. Code, section 1447. i. The OHARNG concurred with the recommendation. 17. A copy of the advisory opinion was sent to the applicant for review and an opportunity to provide a response. 18. On 29 December 2013, the applicant responded to the advisory opinion and indicated the advisory opinion substantiated her request to either reinstate the DD Form 93, dated 5 February 2005, as the final valid DD Form 93 or to invalidate the designations made in the DD Form 93, dated 29 July 2009. She further stated, in part: a.  NGB admitted the Army processed an invalid DD Form 93 and logic would dictate the last validly completed form as the form of record for compliance with law. NGB and DFAS departed from logic, presumed the place of her deceased husband, and changed the amount of his elections to a percentage that would be in compliance with law. She maintained that when the law states "only," anything outside of that is an invalid designation for payment "by law." The Deputy Chief of Casualty and Mortuary Affairs Branch endorsed this position with an article posted on the Army G-1 website. The article clearly stated, "When Soldiers elect increments other than 10 percent, their chosen beneficiary is disallowed and that portion to be distributed by law, and those Soldiers lose their ability to choose a beneficiary." b.  To endorse NGB's position would be to endorse a position that an agency (DFAS) can arbitrarily chose designations on behalf of a deceased service member (as they did by changing allocation percentages) just to achieve payment percentages that are in compliance with law. She argued DFAS has no authority to make such election percentage allocations and allocations outside of 10-percent increments are to be treated as amounts not covered by a designation. The law determines the distribution rules. c.  DFAS does not have the authority to choose percentage increments and the law and All Army Activities (ALARACT) Message 146/2008, dated 13 June 2008, subject: Implementing Instructions for Designating Death Gratuity Recipients on the DD Form 93, are clear. The ALARACT message provides DFAS clear instructions for what to do when a Soldier fails to or only designates a portion of the amount payable. It was the OHARNG that violated the law from the onset by validating and processing an invalid DD Form 93, failing to notify her of her removal as beneficiary, and choosing not to investigate the matter when it was brought to its attention. 19. On 18 September 2014, the ABCMR denied the applicant's previous request for making her the beneficiary of the FSM's death gratuity. REFERENCES: 1. The SGLI Program is low-cost term life insurance protection for members of the Uniformed Services and their beneficiaries. SGLI coverage is available in $50,000.00 increments up to the maximum of $400,000.00. All Soldiers are required to complete an SGLV Form 8286. This requirement is necessary even if the Soldier is declining any coverage. If the Soldier does elect coverage, the Soldier may list multiple beneficiaries in 10-percent increments until the total amount equals 100 percent. The SGLV Form 8286 is stored in the Electronic Military Personnel Office database and is available for retrieval with authorized access. 2. DODFMR, volume 7A, chapter 36, paragraph 360103B, states, in part, if a member does not make a designation under subparagraph 360103.A, or designates only a portion of the amount payable, the remaining amount of the death gratuity not covered by a designation will be paid to the surviving spouse of the member, if any. 3. A death gratuity as a lump sum gratuitous payment made by the Army to designated beneficiaries of a Soldier who dies while serving on active duty, including full-time Army National Guard/Army Reserve personnel; U.S. Army Reserve personnel traveling directly en route to or from or participating in annual training, active duty for training, initial active duty training, active duty for special work, special active duty training, or inactive duty training and Army National Guard personnel traveling directly en route to or from or participating in annual training, active duty for training, full-time National Guard duty, temporary tours of active duty, initial active duty training, or inactive duty training. The Soldier can designate up to 10 individuals, without regard to relationship, and allocate amounts in 10-percent increments to each designated individual listed on the Soldier's DD Form 93. The purpose of the death gratuity is to help the survivors in their readjustment and to aid them in meeting immediate expenses incurred. At the present time, the amount of death gratuity is $100,000.00. a.  This amount is excludable from gross income for tax purposes. This change is retroactive to 7 October 2001. If the Soldier did not designate any beneficiaries for the death gratuity on the DD Form 93, then the death gratuity amount is made payable to survivors of the deceased in this order: * to the lawful, surviving spouse of the service member, if any * if there is no surviving spouse, to any surviving children of the service member * if there is none of the above, to the surviving parents of the service member * if there is none of the above, to the duly appointed executor or administrator of the estate of the service member * if there is none of the above, to the other next of kin of the person entitled under the laws of domicile of the person at the time of the person's death b.  If a designated beneficiary dies before receiving the amount to which entitled, such amount is then paid to the living survivor(s) first listed above. c.  If a Soldier dies from a service-connected injury/illness, a claim should be made to the Department of Veterans Affairs for the death gratuity determination. 4.  ALARACT Message 146/2008 states, in part: a.  On and after 1 July 2008, Soldiers may designate from 1 to 10 persons to receive all or a portion of the $100,000.00 death gratuity payment. Soldiers must designate amounts payable in 10-percent ($10,000.00) increments. If a Soldier fails, at any time, to make a designation or designates only a portion of the amount payable, DFAS will pay the amount of the death gratuity not covered by a designation as follows: * to the surviving spouse of the Soldier, if any * to any surviving children * to the surviving parents or their survivor(s) * if none of the above exist, to the duly appointed executor or administrator of the estate for distribution to the estate, if any b.  Effective 1 July 2008, if a married Soldier designates another person in addition to or in place of the spouse on or after 1 July 2008, the brigade or separate battalion S-1s and military personnel divisions with the Soldier's records responsibility will prepare and send a letter to the current mailing address for the spouse, as provided by the Soldier, indicating the Soldier has made a change in his or her death gratuity beneficiary election. Brigade/separate battalion S-1s and military personnel divisions with the Soldier's records responsibility will verify the Soldier's spousal and dependent information in the Defense Enrollment Eligibility Reporting System during DD Form 93 updates. 5. Title 10, U.S. Code, section 1477(a)(1), states on or after 1 July 2008, or such earlier date as the Secretary of Defense may prescribe, a person covered by Title 10, U.S. Code, section 1475 or 1476, may designate one or more persons to receive all or a portion of the amount payable under Title 10, U.S. Code, section 1478. The designation of a person to receive a portion of the amount shall indicate the percentage of the amount, to be specified only in 10-percent increments, that the designated person may receive. The balance of the amount of the death gratuity, if any, shall be paid in accordance with subsection (b). 6. Title 10, U.S. Code, section 1477(a)(2), states if a person covered by section 1475 or 1476 of this title has a spouse, but designates a person other than the spouse to receive all or a portion of the amount payable under section 1478 of this title, the Secretary concerned shall provide notice of the designation to the spouse. 7. Title 10, U.S. Code, section 1477(b), states if a person covered by section 1475 or 1476 of this title does not make a designation under subsection (a) or designates only a portion of the amount payable under section 1478 of this title, the amount of the death gratuity not covered by a designation shall be paid as follows: * to the surviving spouse of the person, if any * if there is no surviving spouse, to any surviving children (as prescribed by subsection (d)) of the person and the descendants of any deceased children by representation * if there is none of the above, to the surviving parents (as prescribed by subsection (c)) of the person or the survivor of them * if there is none of the above, to the duly appointed executor or administrator of the estate of the person * if there is none of the above, to other next of kin of the person entitled under the laws of domicile of the person at the time of the person’s death 8. Army Regulation 15-185 (Army Board for Correction of Military Records) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant and/or counsel are not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by counsel are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record shows the applicant and FSM had restraining orders in effect, dated August 2005, which restricted either party from changing beneficiary information on their respective insurances. At the same time, the applicant was listed as the beneficiary on the FSM's DD Form 93. 3. The FSM's DD Form 93 and SGLV Form 8286, both dated 5 December 2005, listed the applicant as the beneficiary. 4. On 1 July 2008, Army guidance was implemented which required notification of the spouse if the Soldier designated another person in addition to or in place of the spouse for the $100,000.00 death gratuity. 5. On 7 March 2009, the FSM submitted a new DD Form 93 in which he did not list the applicant as a beneficiary and instead, he designated three family members as beneficiaries in 25-percent increments and two private organizations in 12.5-percent increments for his death gratuity. 6. The FSM's records are void of any evidence indicating his spouse was notified of the 2009 change to his DD Form 93. 7. Although restraining orders were court-issued in August 2005, the FSM submitted a new SGLV Form 8286 on 29 July 2009 in which he updated his beneficiary by removing his spouse's name and listing his brother as the principal beneficiary. 8. The FSM died in the line of duty on 24 October 2010. 9. DFAS paid the applicant 25 percent of the death gratuity in lieu of the two private organizations listed on the FSM's DD Form 93, dated 7 March 2009, due to erroneous allotment increments to the two private organizations. This payment was in accordance with DODFMR, volume 7A, chapter 36, subparagraph 360103.B. She correctly received the portion of death gratuity not covered by a designation. 10. The applicant filed a Congressional inquiry due to non-receipt of the remainder of the death gratuity. DFAS realized the error in disbursement of less than 10 percent and paid the applicant an additional 15 percent ($15,000.00) in an effort to rectify the error, making the total paid distribution 40 percent ($40,000.00) to the applicant and 20 percent each to the FSM's designated family members in accordance with the 2008 guidance. 11. Notwithstanding counsel's contentions, the Board may not correct the FSM's records to effect a change of his SGLV Form 8286, dated 29 July 2009, for doing so would deprive his other lawfully designated beneficiaries of the payments they received in 2010 without due process of law. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016325 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016325 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2