IN THE CASE OF:	

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110017958 


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: 

* correction of her deceased husband's DD Form 93 (Record of Emergency Data) and SGLV Form 8286 (Servicemembers' Group Life Insurance (SGLI) Election and Certificate), dated 23 February 2010, to show the beneficiary designations as they were prior to 23 February 2010
* paying the death gratuity and SGLI to the applicant
* recouping the already-paid death gratuity from his mother

2.  The applicant states the following:

	a.  Her deceased husband, a service member (SM), violated Army Regulations and the Uniform Code of Military Justice by violating a court order restraining him from changing the beneficiary designations for his death gratuity and SGLI.  The SM petitioned the court for dissolution of his and the applicant's marriage, he signed the petition on 16 February 2010, and filed it with the court on 18 February 2010.  Page 2 of the petition clearly states both parties were restrained from making financial changes including beneficiaries under insurance or other coverage.  This encompasses both the death gratuity and SGLI.  The SM violated the court order by removing his spouse as the primary beneficiary from both the death gratuity and SGLI. 

	b.  The SM's willful deceit continued throughout 2010 as he negotiated a divorce settlement agreement with the applicant.  Shortly before his death the SM and applicant reached an agreement in which he would be required to maintain $500,000.00 in life insurance payable to the applicant.  This agreement was not finalized prior to the SM's death.

	c.  Public law and Army regulations provide safeguards to prevent an injustice from occurring as it relates to the death gratuity, final pay, and SGLI.  The Army is charged by Public Law 109-108 and 110-181 with the responsibility to provide spousal notification of a beneficiary change but the SM's commander did not and denied the applicant the ability to prevent this injustice and injury.  She could have talked to the SM to reach a compromise or used Army and legal remedies available by requesting his commander make him comply with Army Regulation 608-99 (Family Support, Child Custody, and Paternity).  The Army does not have a copy of a spousal notification letter and cannot prove that such a letter was ever prepared.

	d.  The SM's commander was responsible for ensuring the SM understood Army regulations with regard to court orders and to ensure the SM complied with court orders but he did not.  The SGLI Manual, section 6.02, paragraph d counsels service members to ignore State and municipal court orders as they relate to beneficiary designations.  This conflicts with Army Regulation 608-99 and Department of Defense Instructions (DODI) Number 5525.9 (Compliance of DOD Members, Employees, and Family Members Outside the U.S. with Court Orders).

3.  The applicant provides:

* DD Form 93
* SGLV Form 8286
* DD Form 1300 (Report of Casualty)
* DD Form 2064 (Certificate of Death)
* Seven pages titled Summons (Family Law)
* A certificate of marriage
* Three birth certificates
* Six letters
* Twenty-six pages of email
* Three pages of Army Regulation 608-99
* Five pages titled Guidelines for Army Regulation 608-99
* All Army Activities (ALARACT) Message 146/2008
* Military Personnel (MILPER) Message 08-212
* DODI Number 5525.09
* Three pages titled Ridgway versus Ridgway, Certiorari to the Supreme Judicial Court of Maine
* Three pages titled Changes in Law and Regulations
* One page titled Differences in SGLI and Death Gratuity
* Three pages titled Public Law 109-08
* One page titled Relevant Section of Public Law 110-181
* One page titled Legislative History of the Death Gratuity
* Three pages titled SGLI Enhancement Act of 2005
* Three pages titled One Hundred Ninth Congress of the USA
* One page titled One Hundred Tenth Congress of the USA
* Ten pages of Navy MILPER Manual 1770-280
* Three pages of an Adjutant General Briefing for Soldiers Spouses
* Twenty-three pages titled Stipulation of Judgment

CONSIDERATION OF EVIDENCE:

1.  The applicant and the SM were married on 21 October 1989.  They had three children born on 13 October 1991, 12 March 1995, and 27 December 1996, respectively.

2.  Having had prior service in the U.S. Navy, the SM's records show he was appointed as a captain in the California Army National Guard (ARNG), Signal Corps, and executed an Oath of Office on 11 April 2001.

3.  He was honorably released from the ARNG on 31 October 2006 and transferred to the U.S. Army Reserve (USAR).  On 13 June 2007, he was promoted to the rank/grade of major (MAJ)/O-4 in the USAR.

4.  On 17 February 2010, he was ordered to active duty as a member of his USAR unit with a reporting date to Fort Benning, GA, of 20 February 2010.

5.  On 18 February 2010, a summons was filed by the SM in the Superior Court of California, Martinez, CA, wherein he petitioned the court for the dissolution of his marriage to the applicant.  This petition stated, in pertinent part, "the restraining orders on page 2 are effective against both spouses until the petition is dismissed, a judgment is entered, or the court makes further orders.  These orders are enforceable anywhere in California by a law enforcement officer who has received or seen a copy of them…Starting immediately, you and your spouse are restrained from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor children."  The SM signed this summons on 16 February 2010 acknowledging he read the restraining order and understood it applied to him when the petition was filed.

6.  On 23 February 2010, he completed a DD Form 93 wherein he designated his mother as the beneficiary for his death gratuity and for any unpaid allowances.  On that date, he also completed an SGLV Form 8286 wherein he designated the beneficiary for 100 percent of his SGLI as his mother as trustee to fund a trust for the benefit of his three children.  There is no prior DD Form 93 or SGLV Form 8286 available for review with this case to determine if this constituted a change in beneficiaries on either form.  

7.  On 26 February 2010, the SM was assigned to the 401st Army Field Support Brigade, Bagram Airfield, Afghanistan.  On 12 January 2011, he died of natural causes in Afghanistan.

8.  On 19 January 2011, the death gratuity was paid to the SM's designated beneficiary, his mother.

9.  The applicant provides the following:

	a.  A letter to her, dated 1 March 2011, from the U.S. Army Human Resources Command, wherein an official with the Casualty and Mortuary Affairs Office stated research showed when the SM completed his DD Form 93 and SGLV Form 8286 on 23 February 2010, both forms were witnessed and were valid.  His unit also verified those were the most recent forms on file and a letter informing the applicant of the changes to the beneficiaries was generated and mailed to her at the time the designations were made.  In addition, pursuant to Public Law 109-108, section 4, paragraph 4, the notification required by this law is satisfied by a good faith effort to provide the required information to the spouse at the address on file.  In addition, the failure to provide notification in a timely manner does not affect the validity of any coverage election or beneficiary designation made.

	b.  A letter from Prudential Office of Servicemembers' Group Life Insurance (OSGLI), dated 11 March 2011, written to the applicant, claims an examiner stated that any person insured under SGLI may designate as a beneficiary any person, or legal entity, individually or as a trustee.  Insured members retain ownership and the right to name beneficiaries of their own choosing at all times and they (Prudential) are contractually bound to pay the designated beneficiary.  A 1981 Supreme Court decision Ridgway versus Ridgway [decision] addressed this issue.  A divorce decree or any other state court order is not binding on this insurance.  They would pay the SGLI benefit to the FSM's mother as trustee by 11 April 2011 unless they were legally restrained by that date from doing so.  This letter further stated Prudential was the proper party against which to bring suit regarding the distribution of benefits.

	c.  A letter written to the applicant from the Secretary of the Army, dated 4 April 2011, stated a service member may designate any person to receive all or a portion of his death gratuity and once a Soldier names a beneficiary other than his spouse, notification must be made to the spouse.  Records indicated the notification letter to the applicant was sent to the address the SM listed and he did not know why she did not receive the notification at her new address.  The SGLI payment was being withheld at that time and the OSGLI had contacted the applicant with further instructions on how to proceed.  The letter further stated while the disbursement of the SM's SGLI was under review he had ensured that all of the applicant's monthly entitlements for her and her children had been initiated to include the dependency indemnity compensation, Survivor Benefit Plan, and social security.

10.  Army Regulation 608-99 prescribes Army policy, responsibilities, and procedures on financial support of family members, child custody and visitation, paternity, and compliance with court orders regarding these and related matters.  It states, in pertinent part, Soldiers are required to provide adequate financial support to family members in amounts established by a court order or in amounts equal to the basic allowance for housing in the absence of a court order or written support agreement.  Soldiers should comply with all provisions of court orders, including those granting or denying visitation, dividing marital property, providing access to medical care, and other such provisions.  This regulation does not specifically address SGLI or death gratuity elections.

11.  U.S. Code 10, Section 1477, addresses the eligibility of survivors for the death gratuity.  In pertinent part, it allows the Soldier to designate one or more people to receive all or a portion of the amount payable in ten percent increments.  In the event a married person designates someone other than his spouse to receive all or a portion of the death gratuity, the Secretary concerned shall provide notice of the designation to the spouse.  The statute provides no remedy to the spouse if such notice is not provided.

12.  U.S. Code 10, Section 1967 addresses SGLI.  In pertinent part, it requires that if a married Soldier makes a beneficiary designation to any person other than the spouse or a child, the Secretary concerned shall notify the spouse in writing of the designation.  The notification requirement is satisfied by a good faith effort to send the information to the spouse's last known address as reflected in the Secretary's records.  Failure to provide the notification does not affect the validity of the Soldier's election.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the SM violated a State restraining order and the SM's DD Form 93 and SGLV Form 8286, dated 23 February 2010, should be corrected to show the beneficiary designations as they were prior to 23 February 2010; she should be paid the SM's death gratuity and SGLI; and the Army should recoup the death gratuity already paid to his mother.

2.  While it cannot be confirmed that the beneficiary for the SM's death gratuity and SGLI was the applicant prior to 23 February 2010, it is a moot point.  A Soldier may designate any beneficiary he chooses for his death gratuity and SGLI and the Army is obligated to notify the spouse if they are not the designated beneficiary for either.  The unit maintains notification was sent to the applicant after the SM designated his mother as the beneficiary for his death gratuity and SGLI on 23 February 2010 and the applicant maintains she did not receive the notification.  

3.  Regardless, in accordance with applicable laws and regulations, failure to provide the required notification does not affect the validity of any election or beneficiary designation made by a Soldier.  The death gratuity does not provide a remedy if notice is not given; under SGLI, failure of notification does not affect the validity of an election.  The Army Board for Correction of Military Records (ABCMR) cannot change the SGLI election even if the Board agreed that this was done in contravention of a State restraining order.

4.  With respect to the recoupment of the death gratuity, the ABCMR cannot recoup a death gratuity paid to a lawful beneficiary as doing so would constitute taking away the death gratuity without due process under the law.  

5.  In view of the foregoing, the applicant is not entitled to the requested relief.

6.  As OSGLI has not yet paid the SGLI, the applicant is advised the issue is between her and Prudential as Prudential is the proper party against which to bring a suit regarding the distribution of benefits.



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)                                         AR20110017958



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ABCMR Record of Proceedings (cont)                                         AR20110017958



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