IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090012994 


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, as the mother of a deceased former service member (FSM), requests that she be paid the Death Gratuity Benefit.

2.  The applicant states, in effect, that the Death Gratuity Benefit was unjustly paid to her son's estranged legal spouse, that the decision for disposition of his body was wrongly given to his legal spouse causing extreme emotional scarring to his rightful designee (the applicant), and that there was a total disregard for the military testamentary instrument prepared pursuant to Title 10, U.S. Code, section 1044d (Last Will and Testament) of her son who was killed in action.

3.  The applicant contends that her son made every effort to ensure that his estranged legal spouse not benefit from his death and that he specifically named her (the applicant) as his next of kin, beneficiary at 100 percent for the Death Gratuity, and as the designator for the disposition of his remains on his DD Form 93 (Record of Emergency Data) before he deployed to Haiti and then to Iraq.  She contends that the FSM had a brief marriage and that he specifically stated in his Last Will and Testament to disinherit his wife.  In addition, the legal separation papers prepared by the Legal Office at Fort Bragg, NC show his spouse signed away all of her right to his benefits.  The applicant points out that she has pleaded and begged for help from various military offices.  She goes on to state that the FSM's DD Form 2064 (Certificate of Death) clearly reflected his DD Form 93 and Last Will and Testament designations.  She states that her son deployed believing his efforts and designations were clearly defined and would be honored.  She also claims that the letter from the Deputy Chief, Army Long 
Term Family Case Management which states that her son "subsequently married, but did not change his DD Form 93" is incorrect.  She contends that her son married on 9 February 2003, separated on 13 September 2003, and he signed his DD Form 93 on 4 February 2004.  She points out that he prepared his Last Will and Testament on 3 August 2004 and he was killed in action on
15 October 2004.

4.  The applicant provides a DD Form 2064; a DD Form 93; Letters of Testamentary; the FSM's Last Will and Testament; a letter, dated 30 October 2008, from Deputy Chief, Army Long Term Family Case Management, U.S. Army Human Resources Command, Alexandria, VA; a Separation Agreement Worksheet; and the FSM's Marriage Certificate.

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 enlisted in the Regular Army (RA) on 12 July 2001 for a period of
4 years. 

3.  A DD Form 93, dated 18 July 2001, shows the FSM designated his mother as the beneficiary to receive the Death Gratuity and disposition of his remains.  It appears he updated this form on 9 October 2001 and 4 February [the year is illegible].

4.  The FSM married on 9 February 2003.  He and his wife legally separated on 13 September 2003.

5.  The applicant provided a copy of the FSM's Last Will and Testament, dated 
3 August 2004, which states, in pertinent part, that "I hereby disinherit my wife."

6.  The FSM was killed in action on 15 October 2004 in Iraq.

7.  The applicant provided a letter, dated 30 October 2008, from the Deputy Chief, Army Long Term, Family Case Management, U.S. Army Human Resources Command, in St. Louis, MO.  The letter states, in pertinent part, that prior to 25 May 2007, Title 10, U.S. Code, section 1477 required that the Death Gratuity be paid in the following order: spouse, children, and then parents.  If a Soldier was married, the spouse received the Death Gratuity regardless of what the Soldier designated on the DD Form 93.  The letter indicates that the FSM did name the applicant on his DD Form 93 to receive the Death Gratuity, that he subsequently married, and that he did not change his DD Form 93.  In accordance with the applicable law at the time of his death as well as the time he executed the DD Form 93, once he married his spouse became the recipient of the Death Gratuity by operation of law.  The letter states that the Army's interpretation of the DD Form 93 and the applicable statutory scheme are not impacted by any designation in a Soldier's will.  The letter further states that the Army has recognized the concerns raised by families over this statutory scheme and the law has changed since the applicant's son died.  Currently a Soldier can designate anyone on his/her DD Form 93 and operation of law does not override that choice regardless of the Soldier's family situation.

DISCUSSION AND CONCLUSIONS:

The applicant's contentions were carefully considered.  However, by law in effect at the time, as the FSM was married at the time of his death and his spouse received the Death Gratuity regardless of what he designated on his DD Form 93 or in his will.  Regrettably, there is no basis for granting the applicant's requested relief.

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.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20090012994



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012994



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1