IN THE CASE OF:	  

		BOARD DATE:	       23 December 2008

		DOCKET NUMBER:  AR20080019619 


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, correction of the records of her deceased husband, a former service member (FSM), to show that he updated his DD Form 93 (Record of Emergency Data) to show he was "married" to her instead of the current entry of "single" and the SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate) to show that she is the designated beneficiary to receive payment of insurance proceeds, vice his mother. 

2.  The applicant defers her statement to counsel. 

3.  The applicant provides additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's DD Form 93 and SGLV to show he updated his records by showing he was married to the applicant prior to his death. 

2.  Counsel states the following:

	a.  The FSM's current records were not updated following the FSM's marriage to the applicant.  If the records are not corrected to reflect his marriage and designation of his wife as beneficiary, his widow will not receive the benefits that her husband intended.

	b.  The FSM was a member of the Virginia Army National Guard (VAARNG).  On 26 September 2008, he proposed and became engaged to his then girlfriend, the applicant.  On 1 October 2008, his unit received orders to active duty for deployment to Afghanistan in January 2009.  While the FSM and his fiancée had planned to marry after he returned from deployment, they decided to move the wedding up and were married on 17 November 2008.  The purpose of this expedited wedding was specifically so that the applicant would be able to receive benefits arising from the FSM's military service while he was deployed if anything should happen to him.

	c.  The FSM died on 25 November 2008 as a result of a motorcycle accident, just eight days after he was married.  To compound this tragedy, the FSM did not have the opportunity to update his DD Form 93 and SGLV prior to his death.  While he was able to place his wife in the Defense Enrollment and Eligibility Reporting System (DEERS) the day after his wedding and submit a request for increased Basic Allowance for Housing (BAH), he was unable to fill out the forms designating his wife as his next of kin and beneficiary.

   d.  The FSM did not receive his State marriage certificate until 20 November 2008.  The only day he could have filed more paperwork was the next day, Friday 21 November 2008.  The military personnel offices were not open during the weekend of 22 and 23 November 2008 and the VAARNG standard hours are four days of 10 hour shifts, Tuesday through Friday.  Thus, he did not have the opportunity to file new paperwork on Monday, 24 November 2008, either.  He died on Tuesday 25 November 2008.

	e.  The FSM's unit was in the process of deploying and unit members underwent a Soldier Readiness Processing (SRP) in April 2008, during which Soldiers had an opportunity to review their personnel records.  On 9 November 2008, the unit conducted a Soldier Readiness Check (SRC) during which the FSM filled out a new DD Form 93, naming his mother as the beneficiary.  This was done more than a week prior to his wedding and before he determined he would be marrying before deployment.  Thus, his existing documents pre-date his marriage and do not correspond with his intent regarding his wife, the applicant.

	f.  The FSM's unit was due to deploy to Camp Shelby, Mississippi, on 30 November 2008.  A final SRP was to be conducted there and the entire unit was aware of that.  This SRP was conducted on 1 December 2008, six days after the FSM died.  It is beyond certainty that the FSM intended to utilize the final SRP, as part of his deployment, to finalize all of his administrative and estate planning matters with regard to his wife, such as executing a will, updating the DD Form 93 and SGLV.  He knew he would have this opportunity and there was no other time after the wedding, prior to the SRP, which would have been convenient for him to address the multiple issues that need to be handled when a Soldier marries.  It is likely that if he had gone to the military personnel office to change his documents prior to 30 November 2008 deployment date, he would have been told to wait until the final SRP where he could consult with an attorney.  

	g.  The fact that the FSM did not have new documents filled out prior to his death does not indicate that his actual designated beneficiary was not his wife.  The very fact that he wed the applicant just before his deployment clearly demonstrates that his plan was to make the official change as soon as was reasonably possible.  His motivating factor was his concern that he could get killed in action.  It most likely never occurred to him that he would die in an accident prior to his deployment.

	h.  The applicant has already endured a funeral for the FSM in which she almost had no input as the FSM's mother acted as the sole decision maker.  Contrary to the FSM's wishes, the $100,000 death gratuity (DG) has already been paid to the mother.  Competing claims have been submitted to the Army for payment of the SGLI benefit.  Unless a change is made to correct the records, the FSM's mother would receive the entire benefit and his widow would receive nothing.  That was not the FSM's intent.

	i.  The FSM's mother was against the FSM marrying the applicant so soon and did not approve of his plans to make the applicant the sole beneficiary, nor of his intention to name her in his will as the guardian of his son.  

	j.  In conclusion, it was clearly the FSM's intent to provide for his wife, the applicant, if anything should happen to him, by way of military benefits.  

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  Marriage Certificate, dated 17 November 2008.

	b.  Certificate of Death, dated 25 November 2008.

	c.  SGLV-8283 (Claim for Death Benefits), dated 25 November 2008.

	d.  Three affidavits, dated on 9 and 10 December 2008.

	e.  Extracts of internet printouts pertaining to the 276th Engineer Battalion mobilization.
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the VAARNG on 7 October 2004.  He subsequently entered active duty for training (ADT) on 6 February 2005, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He was released from ADT to the control of his ARNG unit on 8 July 2006.  He was assigned to Headquarters and Headquarters Company, 29th Infantry Division, Fort Belvoir, VA.

2.  On 18 July 2006, the FSM completed a DD Form 93, indicating that he was single and listed his mother, Txxx, as the beneficiary for 100 percent of his DG and unpaid pay and allowances.  He further elected maximum SGLI and authenticated this form by placing his signature and date in the appropriate blocks.  

3.  On 25 October 2006, the applicant was reassigned to the 1st Battalion, 2nd Brigade, Fredericksburg, VA.  He was subsequently ordered to active duty on 4 January 2007 and served in Iraq from 3 July 2007 to 30 January 2008.  He was honorably released from active duty to the control of his ARNG unit on 28 February 2008.

4.  On 14 April 2008, the applicant was reassigned to the 29th Special Troops Battalion, Bowling Green, VA.  

5.  On 20 May 2008, the applicant completed an SGLV 8286 certificate naming or updating his beneficiary.  He elected the automatic $400,000 insurance and designated his mother, Txxx, as the principal beneficiary to receive 100 percent payment of his insurance proceeds.  He further indicated that the principal beneficiary would receive payment upon his death.  He authenticated this form by placing his signature in the appropriate block and in the presence of a witness who also authenticated this form by placing his signature and date in the appropriate block.

6.  On 1 July 2008, the FSM was reassigned to the 276th Engineer Battalion, Richmond, VA. 

7.  On 1 October 2008, the FSM was ordered to active duty as a member of his Reserve unit, the 276th Engineer Battalion, in support of Operation Enduring Freedom for a period of 400 days, with 28 November 2008 as his report date to home station in Richmond, VA, and 1 December 2008 as his report date to the mobilization site at Camp Shelby, Mississippi.

8.  The FSM's marriage registrar shows that on an unknown date, the FSM and the applicant applied for a marriage license at the Henrico County Circuit Court, Richmond, VA, and that on 3 November 2008, he was issued a marriage license. 

9.  On 9 November 2008, the FSM completed an updated DD Form 93 and again indicated that he was single and listed his mother, Txxx, as the beneficiary for 100 percent of his DG and unpaid pay and allowances. 

10.  On 17 November 2008, the FSM and the applicant were married in Nottingham, VA.  

11.  On 20 November 2008, the marriage certificate was received by the clerk of court from the officiant.

12.  There is no indication in the FSM's records that he updated his DD Form 93 and/or SGLV to show his new marital status and/or list his wife, the applicant, as the beneficiary of his DG and pay and allowances.  

13.  At 15:38 pm on 25 November 2008, the FSM died as a result of a motorcycle accident in Richmond VA.  The death certificate shows the FSM was married at the time of death and lists the applicant's name, Jxxxx, in Item 23 (If Married or Widowed, Name of Spouse) and the name of the FSM's mother, Txxx, in Item 27 (Informant-or Source of Information-Relationship).

14.  On 5 December 2008, the applicant completed a claim for death benefits (SGLV 8283) to the Office of Servicemembers' Group Life Insurance in Roseland, New Jersey.  It is unclear if this form was received or acted upon.

15.  Counsel submitted three affidavits in support of the applicant's request as follows:

	a.  In her affidavit, dated 10 December 2008, the applicant states that the FSM asked her to marry him on 28 September 2008 and that they subsequently discussed changing his paperwork and benefits to her.  They debated about getting married before or after his deployment and eventually decided to get married on 17 November 2008, and brought up the issue of how he wanted to speak with a civilian lawyer the following week.  She adds that when she picked him up on 23 November 2008, he again brought up the issue how he wanted to change everything, including the bank account and other paperwork.

	b.  In her affidavit, dated 9 December 2008, the applicant's mother states that the FSM spoke with her about taking care of her daughter on several occasions as they were expecting to marry when he returned from deployment, which did not seem unusual.  However, one instance stands out in her mind and that was when the FSM was nervous about where he was being deployed.  The FSM and applicant then told her that they were getting married before he left (this was less than a week before they married) and the FSM told her that it was because he wanted her daughter, the applicant, to be taken care of while he was deployed.  He also told her that while he was in town, he and the applicant would consult with a civilian lawyer about drawing up his will.  He did not specifically mention the SGLI, but she knew that his intent meant for her daughter, the applicant, to receive his benefits.

	c.  In his affidavit, dated 9 December 2008, the applicant's step-father states that he spoke with the FSM about his intentions regarding his step-daughter during a private conversation between the two, during which the FSM received his blessing to marry her.  He adds that during a second conversation at his home and in the presence of his wife, they discussed how he and the applicant intended to marry in light of his upcoming deployment and indicated that he wanted to marry prior to his deployment so all his entitlements and paperwork could be set up and completed prior to his departure.  He further adds that the last occasion he spoke with him about his intention was the night of their wedding when he spoke with the FSM, again in private, and stated that he intended to take care of the applicant.  During the three encounters, the FSM did not specifically state how he would take care of the applicant; however, he seemed genuine and adamant about doing so and his intent of taking care of her meant she would receive the entitlements as his wife and next of kin.

16.  Department of Defense (DOD) benefits for survivors of deceased members of the armed forces vary significantly in purpose and structure.  Benefits such as the death gratuity (DG) provide immediate cash payments to assist these survivors in meeting their financial needs during the period immediately following a member’s death.  Similarly, the SGLI provides the life insurance policy value in a lump sum payment following the service member’s death.  Other benefits such as the Department of Veterans Affairs Dependency and Indemnity Compensation (DIC) and the Survivor Benefit Plan (SBP) are designed to provide long-term monthly income.  Additional death benefits provided by the DOD for survivors and dependents include housing assistance, health care, commissary and exchange benefits, educational assistance, and burial, funeral, and related benefits.  Survivors may also receive death benefits from Social Security.

17.  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, U.S. 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 the 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.

18.  On 1 September 2005, the SGLI was increased to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001 and terminated on September 30, 2005.  The Fiscal Year (FY) 2006 National Defense Authorization Act (NDAA) made the change permanent

19.  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.  

20.  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.

21.  The Death Gratuity is a tax-free, lump sum, originally $12,000.00, paid by DOD in the event of a death while the member is serving on active duty (including certain members of the Reserve components during training).  It can go to one of various “eligible survivors” as described in law.  The designated survivor of virtually all deceased DOD military personnel receives this gratuity immediately.  In Fiscal Year (FY) 2004, the death gratuity statute was amended to provide that the gratuity be adjusted upward by the same amount as any increase in military basic pay.  As part of what was formally called the Death Benefits Enhancement, the death gratuity was increased to $100,000.00 in a case of death resulting from wounds, injuries or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001.  This increase in benefits was extended for FY2006 NDAA and was ultimately made permanent. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend that the FSM's records should be corrected to show he updated his DD Form 93 to show he was married and his SGLV to show that she is the designated beneficiary to receive payment of insurance proceeds, vice his mother. 

2.  The evidence of record shows that on an unknown date, on or before 3 November 2008, the FSM and the applicant requested a marriage license from the Circuit Court of Henrico County, VA, and that a marriage license was accordingly issued on 3 November 2008.  

3.  The evidence of record further shows despite his intent to marry the applicant, as evidenced by their request for a marriage license, the FSM completed an updated DD Form 93, on 9 November 2008, designating his mother as the beneficiary of his unpaid pay and allowances.  It is unclear why the FSM, having known he would be deploying to Afghanistan and having known he would move his wedding up, would not only complete a DD Form 93 on 9 November 2008 naming his mother as the designated beneficiary for unpaid pay and allowances, but not submit an SGLV certificate.

4.  The evidence of record also shows that the FSM and the applicant were married on 17 November 2008 and were issued a marriage certificate on 17 November 2008.  


5.  A Soldier may name anyone as beneficiary for SGLI or unpaid pay and allowances.  At the time he completed his DD Form 93 on 9 November 2008, the FSM was single; but, he still could have named the applicant as his SGLI beneficiary and as the beneficiary of his unpaid pay and allowances.  Furthermore, there is no evidence that the applicant changed his SGLV to show his wife as the designated beneficiary for insurance proceeds prior to his death.  Therefore, even if there was a legal requirement to notify the spouse of his decision, the applicant was unmarried at the time he completed both forms.  Therefore, despite the tragic events endured by the applicant, there is insufficient evidence to grant her the requested relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X____  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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080019619



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