IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080008744 


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, in effect, the records of her deceased ex-husband, a former service member (FSM) be corrected:

	a.  To show that she, Tonyaxxxx Cinxxxx, and her child with the FSM, Cathxxxxx Cinxxxx, are the beneficiaries of the FSM's SGLI (Servicemembers' Group Life Insurance) policy; and

	b. by paying to her any proceeds from the FSM's SGLI policy.

2.  The applicant states that she and her daughter are the sole beneficiaries since she was granted a stay in her divorce to the FSM. 

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DD Form 1300 (Report of Casualty), dated 20 May 1996.

	b.  FSM’s Certificate of Death, dated 14 May 1996.

	c.  Applicant and FSM’s Certificate of Marriage, dated 11 July 1991.

	d.  Applicant’s Certification of Birth, dated 14 February 1970 (issued on 29 March 2004). 

	e.  Certification of Birth showing that Cathxxxxx Cinxxxx was born on 15 November 1991 to the applicant and the FSM.  The Certification of Birth was issued on 29 March 2004.

	f.  Various self-authored letters, dated on miscellaneous dates, addressed to the Department of Veterans Affairs (DVA) and National Personnel Records Center.  

	g.  Affidavit of Service, dated 15 May 1995, Supreme Court of the State of New York, Bronx, New York, wherein the applicant was served with divorce papers.

	h.  Verified Complaint, dated 26 June 1995, Supreme Court of the State of New York, Bronx, New York, made by the FSM against the applicant,. 

	i.  Judgment of Divorce, dated 23 October 1995, Supreme Court of the State of New York, Bronx, New York.

	j.  Affidavit in Support of Order to Show Cause, dated 20 November 1995, Supreme Court of the State of New York, Bronx, New York.

	k.  Attorney Affidavit and Affirmation, dated 5 January 1996.  

	l.  Order to Show Cause, dated 10 January 1996, Supreme Court of the State of New York, Bronx, New York.

	m.  Denial of Motion to Set Aside Service of Process, dated 26 January 1996, Supreme Court of the State of New York, Bronx, New York.

	n.  U.S. Department of Housing and Urban Development (HUD), Worksheet for Tenant Rent, dated 25 April 1995, and Certification of Compliance, dated 2 March 1998.  

	o.  Various receipts and computer printouts, dated on miscellaneous dates.

	p.  Various postal mail receipts, dated on miscellaneous dates.

	q.  Computer print-out of the Dependency Indemnity Compensation (DIC).

	r.  Various letters and briefs, dated on miscellaneous dates.  

	s.  Copies of the applicant’s and her daughter’s Social Security Cards and Identification Cards; the applicant’s University Card and Drivers License; and the applicant’s daughter’s Military Identification Card.  

	t.  Various letters from the DVA and the Social Security Administration, dated on miscellaneous dates, to the applicant.  

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.  The FSM’s records are not available for review with this case.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The FSM's reconstructed records show he was born on 30 November 1969 and initially entered military service in what appears to be the New York Army National Guard (NYARNG) on 23 June 1989.  He attained the rank/grade of specialist (SPC)/E-4 on 1 June 1991.

4.  The FSM's reconstructed records also show that he enlisted in the Regular Army for an unknown period on 23 September 1994 or 11 February 1995.  He held military occupational specialty (MOS) 88L (Transportation Management Coordinator) and was assigned to the 73rd Transportation Company, 7th Transportation Group, Fort Eustis, Virginia. 

5.  The FSM’s reconstructed records show that he and the applicant were married in Bronx County, New York on 11 July 1991, and had a daughter, Cathxxxxx Cinxxxx, on 15 November 1991.


6.  The applicant provided copies of the legal decisions rendered by the Supreme Court of the State of New York, Bronx, New York, regarding her marriage to and divorce from the FSM.  The legal documents show the following:

	a.  The applicant and FSM did not cohabit with each other as husband and wife for the period commencing on or about 4 January 1992.  During said period, the applicant told the FSM that she no longer loved him and refused to have a marital relationship with him or cohabit with him despite the FSM’s willingness to do so.  As a result, the Court, considered the applicant to have abandoned the FSM and, on 6 October 1995, granted the FSM a judgment dissolving the marriage that existed between the applicant and him.

	b.  On 20 November 1995, the applicant submitted an affidavit to Show Cause, seeking a court order to vacate the judgment of divorce.  The Court rendered a decision on 4 December 1995, which ordered a hearing on the applicant’s motion.  A hearing was held on 19 January 1996, and after due consideration, the Court determined that the applicant was properly served and based on the preponderance of the credible evidence the motion to set aside service of process was denied.

7.  Following the judgment of divorce, the FSM married his second spouse, Angxxx Cinxxxx, on 22 November 1995.  The FSM's reconstructed record is void of a copy of the marriage license and/or certificate of marriage.

8.  On 14 May 1996, the FSM died as a result of an “apparent self-inflicted gun shot wound” at Newport News, Virginia.  Item 9 (Interested Persons) of the FSM’s Report of Casualty listed the following individuals:

	a.  Angxxx Cinxxxx (wife) – footnotes indicate that she is the adult next of kin, the beneficiary for gratuity pay, and the beneficiary for unpaid pay and allowances.  The entry also indicates that she is beneficiary for 100% of the FSM's SGLI.

	b.  Alexxx Coopxx (stepdaughter).

	c.  Cathxxxxx Cinxxxx (daughter) – in care of [applicant] at Bronx, NY address.

	d.  Manxxx Cinxxxx (father)

	e.  Clevexxxx Cinxxxx (mother, deceased).

9.  The FSM's reconstructed record indicates that Angxxx Cinxxxx was the beneficiary of his SGLI proceeds by the Department of Veterans Affairs (DVA) subsequent to the FSM's death.

10.  SGLI is a program of low cost group life insurance for servicemembers on active duty, Ready Reservists, members of the National Guard, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration and the Public Health Service, cadets and midshipmen of the four service academies, and members of the Reserve Officer Training Corps (ROTC).  For military personnel, SGLI is recorded on SGLV Form 8286. The SGLI program is a Department of Veterans Affairs program.  Only certain portions of the program, such as preparing the SGLV 8286 and collecting premiums are administered by the military services.  This insurance is granted under the SGLI provisions of Title 38, United States Code, and is subject to the provisions of that title and its amendments, and Title 38 Code of Federal Regulations.  The SGLV form must be correctly completed, signed and received by Service before death in order for the designation on the form to be valid.  SGLI is in effect throughout the period of full-time active duty or active duty for training.  Coverage is also in effect on a full-time basis for reservists who are assigned to a unit or position in which they may be required to perform active duty or active duty for training and each year will be scheduled to perform at least 12 periods of inactive duty training that is creditable for retirement purposes under Chapter 1223 of Title 10, United States Code.  SGLI coverage continues for 120 days following separation or release.

11.  When naming a beneficiary, a new SGLV-8286 must be completed to change a beneficiary.  A Soldier may name anyone as beneficiary without his/her consent.  The Servicemembers' and Veterans' Group Life Insurance Handbook states in paragraph 6.02d, that SGLI and VGLI are federal programs and operated under federal law.  Under federal law, the insured has the absolute right to name and change the beneficiary at any time without the knowledge or consent of a prior beneficiary.  However, effective 1 September 2005, a Soldier’s spouse must be notified if the Soldier elects to reduce coverage or to name a beneficiary other than a spouse.  If the beneficiary is a married woman, the woman’s given first and middle names are used.  A named beneficiary will NOT be changed automatically by any event occurring after completing this form (e.g. marriage, divorce, etc.).  The beneficiary cannot be changed by, and is not affected by, any other documents such as a divorce decree or will.  When naming more than four principal or contingent beneficiaries, the additional beneficiaries are listed on the Beneficiary Continuation Form.  The block under the principal or contingent blocks on page 2 must be checked, indicating that a Soldier has done so. The Beneficiary Continuation Form (page 5) should then be attached to page 2 of the 8286.  When naming minor children as beneficiaries, the insurance will be paid to the court-appointed guardian of the children's estate. 
12.  When naming more than one principal beneficiary and one or more predeceases the Soldier, the share(s) will be divided equally among the remaining principal beneficiaries, unless otherwise stated.  If there are no surviving principal beneficiaries, the proceeds will be divided among the contingent beneficiaries. If no beneficiary is named, or if there are no surviving beneficiaries, or if the Soldier indicates that payment should be made by law, the proceeds will be paid in the following order:

	a.  Widow or widower;
	b.  Children in equal shares (the share of any deceased child will be distributed equally among the descendants of that child);
	c.  Parent(s) in equal shares or all to surviving parent;
	d.  A duly appointed executor or administrator of your estate;
	e.  Other next of kin.

13.  Section 646, Public Law 104-106, 10 February 1996, increased the automatic level of SGLI coverage from $100,000 to $200,000 and repealed the optional additional $100,000 of insurance.  Implementation Guidance, dated 7 March 1996, stipulated that members eligible for SGLI under section 1967 (a) of title 38 United States Code, on 31 March 1996 with continued eligibility on 1 April 1996, would have their SGLI increased to $200,000 effective 1 April 1996, regardless of any prior election.  Members with less than $200,000 coverage applicable in March 1996 could avoid any higher premiums provided they completed a new SGLI 8286 in April 1996 to retain their previously elected coverage.

14. Army Regulation 600-8-1 (Army Casualty Operations/Assistance/Insurance) states, in paragraph 11-29g, that the designation of all SGLI beneficiaries will remain in effect until properly changed by the soldier or until the SGLI is automatically canceled or terminated.

15.  Army Regulation 600-8-1, paragraph 11-33 states the SGLV 8286 will be reviewed and updated any time there is a change or during any records audit.  A new SGLV 8286 is not required when the only change is the Soldier's unit of assignment.  If no update is required during any records audit, the soldier will initial and enter the date in pencil, on the bottom right margin of the form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show that her marriage to the FSM was never terminated and that she and her daughter should be shown as the widow and child of the FSM, and in effect, that they receive the FSM's SGLI proceeds.
2.  The evidence of record shows that the FSM filed for divorce from the applicant and that the Court granted the FSM a judgment dissolving the marriage that existed between the applicant and the FSM, on 23 October 1995.  The applicant subsequently sought a Court order to vacate the judgment of divorce.  She indicates that she obtained a "stay," which is a court-ordered short-term delay in judicial proceedings.  That may well have occurred, however, after due consideration, the Court determined that the applicant was properly served and, based on the preponderance of the credible evidence, the motion to set aside service of process was denied.

3.  There is no evidence in the reconstructed record and the applicant did not provide substantiating evidence that shows her divorce from the FSM was vacated by the Court.

4.  With respect to the applicant's claim to SGLI, there is no evidence in the reconstructed record and the applicant did not provide any substantiating evidence that shows she was named as the beneficiary in case of the FSM's death.  In the absence of the SGLV form itself, it is presumed that the SGLI benefit was paid to the beneficiary designated on the form and that Angxxx Cinxxxx was that person.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief she requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080008744



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ABCMR Record of Proceedings (cont)                                         AR20080008744



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