IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100028902 


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, the spouse of a former service member (FSM), requests correction of the FSM's records to show she was designated as the primary beneficiary for his death gratuity (DG), unpaid pay and allowances (P&A), and the person authorized to direct disposition (PADD) of the FSM's remains.

2.  The applicant states the FSM died in combat while serving in Afghanistan.  Immediately following his death, a conflict arose regarding the FSM's authorized primary beneficiary for the $100,000.00 DG payment, $6,000.00 for funeral expenses, his unpaid P&A, and the PADD to arrange the funeral services.

	a.  According to the DD Form 93 (Record of Emergency) the FSM completed on 3 December 2009, his designated beneficiary for the DG was his mother.

	b.  The applicant and FSM were married on 3 April 2010.  On 19 April 2010, the FSM updated and completed the required pre-deployment documents.  At that time, the FSM changed his primary beneficiary to the applicant for the DG, unpaid P&A, and PADD.  The applicant states, "After completing the necessary forms, they were REVIEWED, VALIDATED, CERTIFIED, and INITIALED [emphasis added by the applicant] by Army personnel."  She adds that a signed copy of this DD Form 93 cannot be found.

	c.  She states that on 17 September 2010, the FSM's commanding officer documented in a memorandum "that [the Battalion S-1 (Forward)] CONFIRMED [emphasis added by the applicant] that [FSM] updated both forms [i.e., DD Form 93 and Service Members' Group Life Insurance (SGLI)] on 19 April 2010, but the DD Form 93 was not loaded into the interactive Personnel Electronic Records Management System (iPERMS) at NO FAULT [emphasis added by the applicant] of the Soldier" and that "…currently the unit forward cannot locate the form due to ongoing major combat operations."  In addition, she states the battalion adjutant documented in a memorandum "that the [Soldier Readiness Processing] packets were reviewed and dates verified, and signatures stating that the DD Form 93 was valid and represents the Soldier's wishes."

	d.  The issue was presented to the Staff Judge Advocate (SJA), U.S. Army Human Resources Command, Fort Knox, KY, who made the decision that the DD Form 93, dated 3 December 2009, was the appropriate document upon which to base the FSM's designated beneficiaries.

	e.  The applicant states she managed all of the couple's finances after the FSM deployed.  However, as a result of the Army's decision, she was unable to follow the FSM's wishes after his death, which they had discussed shortly before the FSM deployed on 4 June 2010.  She adds that the FSM's mother has been extremely bitter toward her and is unwilling to support her in any way.

	f.  The applicant states she suffered a great deal of emotional trauma due to the already horrific situation and this injustice has added to her emotional distress.  She concludes that the Army has not taken responsibility for this incident and is not providing for a surviving spouse as it should be doing.

	g.  The applicant provides a timeline summarizing the events, as follows:

* 3 April 2010 – applicant and FSM married
* 19 April 2010 – FSM's SRP packet completed, including a DD Form 93 designating the applicant as primary beneficiary for the DG, burial expenses, unpaid P&A, and PADD of the FSM's remains
* 4 June 2010 – FSM deployed to Afghanistan
* 16 September 2010 – FSM died in combat in southern Afghanistan
* 17 September 2010 – FSM's commanding officer and battalion S-1 indicate FSM updated his DD Form 93 and SGLI on 8 April 2010; however, the DD Form 93 was not uploaded in iPERMS
* 18 September 2010 – applicant was notified that the most current signed DD Form 93 on file was dated 3 December 2009; it designated the FSM's mother as primary beneficiary for the DG, burial expenses, unpaid P&A, and PADD of the FSM's remains
* 31 October 2010 – applicant received FSM's personal belongings, which included the DD Form 93 and Deployment Checklist in the SRP
* 31 October 2010 – letter sent to the President of the United States – no response
* 28 November  2010 – applicant submitted an appeal to the Army Board for Correction of Military Records
* 6 December 2010 – second letter sent to the President of the United States – no response

3.  The applicant provides copies of an SGLI notification letter, DD Form 93, two deployment forms, and three memoranda.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the FSM enlisted in the U.S. Army Reserve on 3 April 2006 and enlisted in the Regular Army on 20 June 2006.  This document also shows the FSM placed his signature in the appropriate items to confirm his enlistment obligations.

2.  Upon completion of training, the FSM was awarded military occupational specialty 11B (Infantryman).

3.  The FSM was assigned to Company A, 502nd Infantry, 2nd Brigade Combat Team, Fort Campbell, KY.  He was promoted to sergeant (SGT)/pay grade E-5 on 1 September 2009.

4.  A DD Form 93 pertaining to the FSM, dated 3 December 2009, shows the following:

	a.  Section 1 (Emergency Contact Information):

		(1)  item 4a (Spouse Name) – "Single,"

		(2)  item 6a (Father Name) – "Richard K____," and

		(3)  item 7a (Mother Name) – "Shannon L. K____."

	b.  Section 2 (Benefits Related Information):

		(1)  item 11a (Beneficiary(ies) for Death Gratuity) – "Shannon L. K____ (Mother) 100 percent,"

		(2)  item 12a (Beneficiary(ies) for Unpaid Pay/Allowances – Name and Relationship) – "Shannon L. K____ (Mother) 50 percent" and "Richard K____ (Father) 50 percent,"

		(3)  item 13a (PADD) – "Shannon L. K____ (Mother),"

		(4)  item 14 (Continuation/Remarks) – "NMA" [Name and Mailing Address] Shannon K____ (Mother)" and her address,

		(5)  item 15 (Signature of Service Member/Civilian) – a signature and the abbreviation "SGT,"

		(6)  item 16 (Signature of Witness) – a signature with the abbreviation "SPC" [specialist], and

		(7)  item 17 (Date Signed) – the entry "20091203" [3 December 2009].

	c.  The DD Form 93, dated 3 December 2009, is filed in the Deployment/
Mobilization portion of the FSM's official military personnel file (OMPF) in iPERMS.  It was added to iPERMS on 22 March 2010 with an effective date of 3 December 2009 and is the most current DD Form 93 in the FSM's OMPF.

5.  An SGLV-8286 (SGLI Election and Certificate) pertaining to the FSM shows in the "Amount of Insurance" section, "By law, you are automatically insured for $400,000.00."  It also shows the following in the "Beneficiary(ies) and Payment Options" section:

	a.  for principal beneficiaries the FSM's mother's name with a 25 percent share and lump sum payment and the applicant's name (with the relationship to the FSM listed as "Other") with a 75 percent share and lump sum payment;

	b.  for contingent beneficiaries the FSM's sister and brother each with a 50 percent share and lump sum payments;

	c.  the statement, "I have read and understand the instructions on pages 2 and 3 of this form" and, in pertinent part, "I also understand that this form cancels any prior beneficiary or payment instructions."  This document shows a signature that appears similar to that which is affixed to the FSM's DD Form 93, dated 3 December 2009, along with the date "20100419" (i.e., 19 April 2010); and

	d.  a signature showing the form was witnessed and received by an official of the Military Personnel Services Division (MPSD) on 19 April 2010;

	e.  This document is filed in both the Service and Deployment/Mobilization portions of the FSM's OMPF in iPERMS.  It was added to the OMPF on 27 May 2010 with an effective date of 19 April 2010 and is the most current SGLV-8286 in the FSM's OMPF.

6.  An SGLI Spouse Notification Letter, dated 19 April 2010, shows the Chief, In/Out Processing, MPSD, authenticated a letter addressed to the applicant notifying her that the FSM elected a beneficiary other than her (i.e., his current lawful spouse).

	a.  It shows the FSM was entitled to make the election and that nothing related to the notification requirement would affect the validity of such election.

	b.  This document is filed in both the Service and Deployment/Mobilization portions of the FSM's OMPF in iPERMS along with the SGLV-8286, dated 19 April 2009.  It was added to iPERMS on 27 May 2010 with an effective date of 19 April 2010.

7.  The FSM deployed to Afghanistan in support of Operation Enduring Freedom on 6 June 2010.

8.  A DD Form 1300 (Report of Casualty), dated 23 September 2010, shows the FSM died as a result of wounds received on 16 September 2010 in Kandahar, Afghanistan.  Item 7 (Interested Persons/Remarks) shows:

	a.  the applicant as the FSM's next of kin (NOK) with a 75-percent share of the SGLI and the FSM's mother with a 25-percent share of the SGLI;

	b.  the FSM's mother for the DG payment (as designated on his DD Form 93); and

	c.  the FSM's mother and father with a 50 percent share each of the FSM's unpaid P&A (as designated on his DD Form 93).

9.  In support of her request, the applicant provides the following documents.

	a.  An SGLI Spouse Notification Letter, dated 19 April 2010, was previously summarized in this Record of Proceedings.

	b.  A DD Form 93 pertaining to the FSM shows the following:

		(1)  Section 1:

		(a)  item 4a – "Jacklyn M____ K____,"

		(b)  item 6a – "Richard K____," and

		(c)  item 7a -– "Shannon L. K____."

		(2)  Section 2, items 11a, 12a, and 13a – the applicant (with the relationship designation of "Other") was designated as the beneficiary for DG (100 percent), unpaid P&A (100 percent), and as the PAAD;

		(a)  item 14 the entry "NMA [applicant's name and address]"; and

		(b)  items 15, 16, and 17 are blank (i.e., the form is not signed or dated).

		(3)  This document shows a file date of 16 September 2010.  It is not filed in the FSM's OMPF in iPERMS.

	c.  A  DA Form 7425 (Readiness and Deployment Checklist), dated 19 April 2010, pertaining to the FSM.

		(1)  Item 22 (Overall Status of Each Section), block b (Personnel), shows "Personnel" was stamped over the "Go" block;

		(2)  Section I (Deployment Validation), part A (Accuracy Statement), item 1 (Signature of Deployee), is blank;

		(3)  Part B (Commander's Acknowledgment), item 7 (Signature), is blank;

		(4)  Part C (Deployment Validation), item 16 (Signature of Deployment Official), is blank;

		(5)  Page 2 does not show the FSM's name on the form.  Section II (Personnel), item 1 (Emergency Data Record, DD Form 93, review and update) and item 2 (SGLV Form 8286 and 8286A, FEBLI review and update), both show a checkmark in the "Go" column with the date "20100419" and item 1 was certified (with initials).  (Only one other item of the 26 items listed in this section was certified with initials.)

		(6)  Page 3 does not show the FSM's name on the form.  The space at the bottom of the form shows the entry "$400K SGLI."

	d.  A Family Background and Personal Request form, undated, pertaining to the FSM.  It shows the FSM was married to the applicant; the applicant is listed as his primary NOK and the FSM's mother is listed as his secondary NOK.  It also details the FSM's personal requests in the event of his death.  This document shows a signature on page 2 of the form that appears similar to that which is affixed to the FSM's DD Form 93, dated 3 December 2009, and SGLV Form 8286, dated 19 April 2010.

	e.  Echo Company, 2nd Brigade Combat Team (Rear) (Provisional), 101st Airborne Division (Air Assault), Fort Campbell, KY, memorandum for record (MFR), dated 17 September 2010, subject:  Casualty Documents – [FSM].  This document shows the commanding officer, Major W____ M. P_____, indicated, "[t]he DD Form 93, dated 3 December 2009, is not the most current version of the form pertaining to the [FSM] (deceased).  [The FSM] updated his DD Form 93 and SGLV during the unit's SRP prior to deployment in April 2010.  Forward battalion S-1 confirmed that Soldier updated both forms during this time frame, but the DD Form 93 was not loaded into iPERMS at no fault of the Soldier.  Currently the unit forward cannot locate the form due to ongoing major combat operations.  The date of the most current DD Form 93 should be 19 April 2010, naming his spouse as the beneficiary for DG, PADD, and Beneficiary for Unpaid Pay/Allowances."

	f.  Headquarters, 2nd Battalion, 502nd Infantry Regiment, 101st Airborne Division (Air Assault), Forward Operating Base Howz-E-Madad, Afghanistan, MFR, dated 17 September 2010, subject:  [FSM].  This document shows the adjutant, Captain K____ R. A____, indicated, "I have verified that DD Form 93, Record of Emergency Data, dated 8 April 2010, was changed and verified by [the FSM].  We have reviewed all of our SRP packets and verified dates and signatures to ensure an incident like this does not happen again.  However, the 8 April 2010 document is valid and represents the Soldier's wishes."

	g.  U.S. Army Human Resources Command, Fort Knox, KY, memorandum, dated 23 February 2011, shows the Congressional Liaison Officer, Casualty and Mortuary Affairs, informed Mrs. J____ H____ [the applicant's mother] he was responding to her letter to President Obama regarding her concerns about the details of the death of the FSM.  It shows the process that was followed to determine the accuracy of the distribution of the FSM's DG and unpaid P&A was carefully reviewed, the designated PADD of remains was researched, and the documentation was provided to the SJA for determination.  The SJA concluded that all distributions were properly made and the designated PADD was accurate based on the latest document (i.e., a DD Form 93) legally executed/signed by the FSM on 3 December 2009.

10.  Department of Defense Financial Management Regulation (DODFMR), volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 36 (Payments on Behalf of Deceased Members), provides in:

	a.  paragraph 3601 that DG will be paid to eligible beneficiaries of a member who dies while on active duty or while traveling to or from such duty.

		(1)  Subparagraph 360103 (Beneficiary) shows a member may designate one or more persons to receive a portion of the amount payable under paragraph 360106.  If a member provides conflicting information regarding designation of beneficiaries and their proportionate shares of the DG in blocks 11 and 14 of the DD Form 93, then payment will be made only to the extent that there are unambiguous designations.  For example, if a member completes block 11 by designating his mother to receive 100 percent of the DG, and also completes block 14 by designating his mother and his sister to each receive 50 percent of the DG, there are conflicting designations.  In this situation, 50 percent of the DG would be payable to the mother and the remaining 50 percent would be paid in accordance with table 36-1.  The amount payable to the designee must be specified in 10-percent increments.  The balance of the amount of the DG, if any, will be paid in accordance with table 36-1.  Effective 28 January 2008, if a member has a spouse, but designates a person other than the spouse to receive a portion of the amount payable, then the Secretary of the Military Service concerned (or designee) will provide notice of the member's designation to the spouse.

		(2)  Subparagraph 360104 (Determining eligible beneficiaries) provides that when officially notified that a member of his or her command has died, the commanding officer maintaining the member's personnel or service records determines if an eligible DG beneficiary exists in accordance with paragraph 360103 or the categories shown in table 36-1.  Legal assistance officers help in cases involving a question of law.

		(3)  Subparagraph 360109 (Erroneous payment) provides that an erroneous payment of DG is one made to a person clearly not entitled to it because of administrative error rather than because of statements of record made by the member.

		(a)  Make a second payment to the rightful beneficiary when the error resulted from improper maintenance of records or administrative negligence.  Do not delay this payment pending recovery of the erroneous payment from the ineligible recipient.

		(b)  Do not make a second payment of DG to a different person if the original payment was based on statements of record made by the member and the government has no reason to doubt the beneficiary's status was as stated.

	b.  Paragraph 3602 (Settling Deceased members' accounts) provides in:

		(1) subparagraph 360201 (General) that this section contains the authority for payment of any unpaid pay and allowances due on behalf of a deceased member of the Armed Forces.  Unpaid pay and allowances includes:

		(a)  pay and allowances due and unpaid at death, including settlement of accrued leave (subject to limitation in paragraph 350101, unless paragraph 341001 applies) when death occurs on or after August 28, 1965;

		(b)  amounts due for travel, per diem, transportation of dependents, and shipment of household goods (DODFMR, volume 7A, chapter 36);

		(c)  member's savings deposits and interest thereon;

		(d)  if a member dies before receiving the full amount of the bonus due (including contracted future year anniversary payments) and death is not caused by the member's misconduct, then the remaining unpaid bonus balance is payable as a lump sum for inclusion in the settlement of the Deceased member's final military pay account.  If death is determined to be the result of the member's own misconduct, then termination of future payments and proration or recoupment of the bonus, as applicable, will be made in accordance with procedures established for members whose inability to complete a contracted period of service is voluntary or the result of misconduct; and

		(e)  proceeds of any checks for items in subparagraphs 360201 (a through d), unnegotiated by the member before death.

		(2)  Subparagraph 360202 (Entitlement) provides that upon official notification of the death or finding of death, any amounts due the decedent are paid to the person(s) determined to be the eligible beneficiary or beneficiaries.  Any payments made under this section prohibit recovery of those payments by any other person.

11.  Army Regulation 638-2 (Care and Disposition of Remains and Personal Effects) prescribes policies for the care and disposition of remains of deceased personnel for whom the Army is responsible and for the disposition of personal effects of deceased and missing personnel.

	a.  Paragraph 4-4 provides that only one person at a time can be the PADD and lists the order of priority for determining the PADD for eligible deceased personnel.  It lists, in pertinent part, the surviving legal spouse and then a designated blood relative.

	b.  Paragraph 4-8 provides for challenges and disqualifications of the PADD and shows other relatives of the decedent or interested persons may challenge the PADD's qualification based upon family relationship, PADD's incompetence, or civil law.  The burden of proof to establish that the PADD is not qualified generally rests with the person alleging the PADD is unqualified.  Accordingly, the person challenging the PADD's qualification will generally obtain and submit the documents required to disqualify the PADD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected to show he designated the applicant as the primary beneficiary for the DG payment (100 percent), his unpaid P&A (100 percent), and the PADD of his remains because these designations are annotated on a DD Form 93 the FSM completed in April 2010 and she was his spouse, both at that time and at the time of his death.

2.  Records show the FSM and applicant were married at the time of the incident that is under review.  Thus, the applicant was an eligible beneficiary for the DG payment, unpaid P&A, and PADD.  However, the evidence of record shows the FSM's mother and father were also eligible beneficiaries for the DG payment, unpaid P&A, and PADD.

3.  The evidence of record shows the FSM completed a DD Form 93 designating his mother as the beneficiary for the DG payment (100 percent), his mother and father as beneficiaries for his unpaid P&A (50 percent each), his mother as the PADD, and the FSM and a witness signed the form on 3 December 2009.

4.  The two MFR's from the FSM's commanding officer and adjutant indicate the FSM updated/changed and verified his DD Form 93 during his pre-deployment processing, but the form was not filed in his OMPF in iPERMS.  However, they provide conflicting information with respect to the date the DD Form 93 was completed by the FSM (i.e., 19 April 2010 and 8 April 2010, respectively).

	a.  In addition, neither officer specifically states the FSM signed the DD Form 93.  In fact, the adjutant merely indicates the DD Form 93 "was changed and verified by the FSM"; there is no indication the FSM signed the form.  Moreover, the form cannot be located at the unit.  Additionally, the unsigned DD Form 93 the applicant provides with her application is not filed in the FSM's OMPF in iPERMS.



	b.  Furthermore, while the adjutant indicates, "we have reviewed all of the unit's SRP packets and verified dates and signatures to ensure an incident like this does not happen again," this only serves to confirm that the unit's existing SRP packets will not result in a similar incident.  It does not suggest that a DD Form 93 completed in April 2010 was signed by the FSM, as they cannot locate said form.

5.  Thus, there is insufficient evidence to show the FSM legally executed (i.e., signed) the DD Form 93 that the applicant provides or that he legally executed any other DD Form 93 subsequent to 3 December 2009 and prior to the time of his death.

6.  The evidence of record shows the U.S. Army recognized the FSM's mother as the PADD and also authorized the distribution of payments related to the FSM's combat-related death in accordance with the DD Form 93 the FSM legally executed on 3 December 2009.

7.  The evidence of record shows that upon official notification of the death, any amounts due the decedent are paid to the person(s) determined to be the eligible beneficiary or beneficiaries.  Any payments made under this provision prohibit recovery of those payments by any other person.

8.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ___X___  GRANT FORMAL HEARING

___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 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)                                         AR20100028902



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ABCMR Record of Proceedings (cont)                                         AR20100028902



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