IN THE CASE OF:
BOARD DATE: 14 April 2015
DOCKET NUMBER: AR20140009004
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:
The applicant defers to counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant, the mother of a deceased former service member (FSM), be named as the FSM's Survivor Benefit Plan (SBP) beneficiary.
2. Counsel states:
a. The evidence demonstrates that had the FSM been alive at the time he was awarded disability retirement benefits, he would have named his mother as his sole SBP beneficiary. In the interest of justice, the applicant respectfully asks that the FSM's records be corrected to reflect his wishes.
b. The DD Form 2656 (Data for Payment of Retired Personnel) is part of the FSM's military records. In his case, the DD Form 2656 is blank because it was only made available to him posthumously.
c. Before the FSM died, he executed a Last Will and Testament (Will) on
31 December 2001. In his Will, he left all of his assets to his mother. He also named the applicant as the executor of his estate. The applicant filed the Will in Probate Court in Bandera County, TX in August 2010 and the Probate Court issued an order probating the Will in September 2010. The Probate Court found that at the time the FSM executed his Will, it was his last will and testament and that his mother was to be appointed to serve as the Executrix of his general estate.
d. The Probate Court determined the FSM was not legally married or divorced after the making of the Will. The Probate Court further determined that he was not legally married and did not have any children at the time of his death. Accordingly, the applicant was the closest living family member to the FSM when he died in May 2010. The FSM's Will names the applicant as the sole beneficiary.
e. In order for any of the benefits of the FSM's posthumous retirement to be realized, he must have completed a DD Form 2656 and named the applicant as his SBP beneficiary. The evidence demonstrates that had he been alive at the time he was awarded disability retirement benefits, his mother would have been named as the sole SBP beneficiary. He named his mother as the sole beneficiary of his general estate and was otherwise without a spouse or child.
f. The FSM died while waiting for the Army to correct its prior mistake with regard to his post-traumatic stress disorder (PTSD) rating and grant him permanent retirement and entitlement to SBP coverage. As a result, he was not able to file a DD Form 2656 reflecting what was almost certainly his wish.
g. In light of the extraordinary circumstances present here and in the interest of justice, the applicant asks that the FSM's records, as they relate to his SBP designation, be corrected to retroactively name her as his SBP beneficiary.
h. They are aware that there is reference within the attached records to the FSM's "wife" (Ms. J.S.); however, both the probate court that considered the FSM's Will and the Department of Veterans Affairs (VA) decision regarding dependency and indemnity compensation officially determined that the FSM was never married.
3. Counsel provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
5 March 2007
* DA Form 199, dated 9 April 2007
* DA Form 3947 (Medical Evaluation Board Proceedings)
* VA Rating Decision, dated 14 November 2007
* VA Rating Decision, dated 6 December 2010
* a letter from the U.S. Army Physical Evaluation Agency (USAPDA), dated 9 May 2012
* Order Number D130-66, issued by the USAPDA on 9 May 2012
* DD Form 215 (Correction to DD Form 214)
* the FSM's Last Will, signed on 31 December 2001
* Bandera County, TX, Order Probating Will and Authorizing Letters Testamentary, signed on 13 September 2010
* the FSM's Certificate of Death
* a letter from the VA, dated 8 February 2011, addressed to Ms. J.S.
* VA Compensation and Pension Exam Report, dated 15 September 2010
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 10 July 2001.
2. On 31 December 2001, the FSM executed a Will. In his Will, he left all of his assets to his mother and he also named her as the executor of his estate.
3. He served in Iraq from 4 May 2003 to 3 May 2004 and from 5 August to
19 October 2006.
4. On 5 March 2007, a PEB found the FSM medically unfit for further military service due to PTSD and recommended his separation with entitlement to severance pay. On 10 July 2007, he was discharged accordingly.
5. The FSM's official military personnel file (OMPF) includes a Servicemember's Group Life Insurance Certificate, dated 2 May 2007, in which he named his wife, Jessica, as the sole beneficiary to receive payment of his insurance proceeds.
6. The FSM's OMPF also includes a DD Form 93 (Record of Emergency Data), dated 2 May 2007, that shows he listed Jessica as his spouse. This form also shows he named his father as the beneficiary for death gratuity (if no surviving spouse or child).
7. The FSM's Enlisted Record Brief, prepared on 3 July 2007, shows his marital status as "married."
8. The FSM died on 26 May 2010. Prior to his death, the FSM had joined a class action lawsuit (Sabo v. United States). As a result of the lawsuit, the FSM was granted a disability retirement retroactive to the date of his discharge.
9. The applicant filed the Will in Probate Court in Bandera County, TX in August 2010. The Probate Court issued an order probating the Will in September 2010. The Probate Court found that at the time the FSM executed his Will, it was his last will and testament and that his mother was to be appointed to serve as the Executrix of his general estate.
10. The Probate Court also determined the FSM was not legally married or divorced after the making of the Will. The Probate Court further determined that he was not legally married and did not have any children at the time of his death.
11. On 9 May 2012, the U.S. Army Physical Disability Agency published Order Number D130-66, directing the FSM's placement on the Temporary Disability Retired List (TDRL) effective 11 July 2007. This order also directed the FSM's removal from the TDRL and his placement on the Permanent Disability Retired List effective 10 January 2008.
12. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest (NIP) in the member. Premiums for NIP coverage are generally higher than for any other category of coverage.
13. Department of Defense Financial Management Regulation, Volume 7B (Military Pay Policy-Retired Pay), chapter 44 (SBP Beneficiaries), paragraph 440205 (NIP), provides that an eligible person is a person who has a reasonable and lawful expectation of pecuniary benefit from the continued life of the member. This category may include parents.
DISCUSSION AND CONCLUSIONS:
1. Counsel requests the applicant be named the FSM's SBP beneficiary. Counsel based his request on the fact that the FSM executed a Will on
31 December 2001, in which he left all of his assets to his mother and also named her as the executor of his estate.
2. This request is made based on the assumption that, if the FSM had been given the opportunity, he would have elected SBP coverage naming his mother as his beneficiary. However, multiple documents present in his OMPF executed near the time of his 2007 separation from the Army show that he was married to "Jessica." In addition, the FSM's DD Form 93 shows he named his father as the beneficiary for death gratuity in the absence of a surviving spouse or child.
3. If the FSM was married, he could not have elected NIP coverage over spouse coverage. Additionally, even if he was not married, it is pure speculation to conclude that he would have elected his mother over "Jessica" or anyone else in 2007 based on a Will executed in 2001.
4. Based on the foregoing and in the absence of conclusive evidence indicating the FSM was definitively going to elect participation in the SBP, there is no basis for granting the 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) AR20140009004
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