RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03143
            INDEX CODE:  128.14
            COUNSEL:  BLAYNE SCOTT TUCKER
            HEARING DESIRED:  YES

      MANDATORY CASE COMPLETION DATE: 18 Apr 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her father's records be corrected to show that his next-of-kin was  entitled
to death gratuity benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her father passed away on 18 Oct 03 as a result of injuries he  received  as
a direct result of his exposure to  Agent  Orange  while  in  service.   The
Department of Veterans' Affairs (DVA) has  determined  he  suffered  from  a
combat  related  disability  and  he  was  awarded  Combat  Related  Special
Compensation (CRSC) for his disability.  The request for death gratuity  was
denied by the Air Force Casualty Office because of  a  misinterpretation  of
the applicable law.  Public Law 109-13 provides that his widow  is  entitled
to additional death gratuity and retroactive death  gratuity  as  stated  in
Section 1013a Death Gratuity, and (b)  Retroactive  death  gratuity  because
his death was a direct result of  a  combat-related  death  defined  by  the
Secretary of Defense, under laws as determined under Title 38 by the DVA.

In support of her request, applicant provided a personal statement, a  death
certificate,  documentation  associated  with  the  former   member's   CRSC
determination, documentation associated with the applicant's  Department  of
Veterans'  Affairs  (DVA)  claims,   and   excerpts   from   various   other
literatures.  Applicant provided a timeline of the pertinent events as  they
transpired, excerpts from several court cases and  statutory  excerpts  that
she believes are applicable, her father's background information.

Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member retired from the Air Force on 31 Jul 79, in the  grade  of
colonel, after serving 28 years, 7 months, and 4 days on active duty.

On 13 Aug  02,  the  Department  of  Veterans'  Affairs  (DVA)  awarded  the
applicant  service  connection  for  his  lymphoma,  secondary  to  prostate
cancer, rated at  100%;  coronary  artery  disease,  secondary  to  diabetes
mellitus associated  with  herbicide  exposure,  rated  at  60%;  and  renal
insufficiency with hypertension, secondary to diabetes  mellitus  associated
with herbicide exposure, rated at  30%.   He  had  previously  been  awarded
service connection for prostate cancer associated with  herbicide  exposure,
rated at 60%; and diabetes  mellitus  associated  with  herbicide  exposure,
rated at 10%.

On 18 Oct 03, the former member died.  The cause of death was identified  as
"Non-Hodgkin's/T-Cell Lymphoma, toxic exposure to Agent Orange."

On  30  Sep  03,  applicant's  application  for   Combat   Related   Special
Compensation (CRSC) was approved, effective 1 Jun 03,   for  his  malignant,
growth, diabetes mellitus, removal of testis,  non-Hodgkin's  lymphoma,  and
atherosclerotic heart disease.

_________________________________________________________________

AIR FORCE EVALUATION:

DFAS-US Military Retired Pay recommends denial.  DFAS states Title 10,  USC,
section 1476, states that the Secretary shall pay a  death  gratuity  to  or
for the survivors prescribed in section 1477 of this title  of  each  person
who dies within 120 days after discharge or release from  active  duty.   As
the former member was released from active duty on 31 Jul 79,  and  died  on
18 Oct 03, death gratuity is not payable.

Pursuant to the AFBCMR's request, DFAS-US Military Retired Pay  provided  an
additional evaluation.  DFAS withdrew the  previous  evaluation  stating  it
was not within their cognizance to make such a determination and states  the
applicant's claim must be reviewed by  the  DVA  to  determine  if  a  death
gratuity is payable on the changes made by Public Law 109-13.

The complete DFAS evaluations are at Exhibits C and E.

In view  of  the  DFAS  opinion,  the  AFBCMR  administratively  closed  the
applicant's case with a recommendation that a request for death benefits  be
sought through the DVA.  As a result of  email  communications  between  the
AFBCMR and the applicant, the AFBCMR resumed processing of the  application.


_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  responded  to  the  DFAS  evaluation  and   states   the   Veterans
Administration has already determined that the injuries/illnesses  were  100
percent service-connected from herbicide  exposure.   He  has  already  been
awarded Combat Related Special Compensation as a result of the same  wounds.
 The only individual authorized to determine  the  cause  of  death  is  the
medical examiner who has conclusively determined his death  was  the  result
of  combat-related  injuries.   The  government  forbade  the  placement  of
warnings on the barrels of Agent Orange and  ordered  there  be  no  product
warnings.  50 USCS requires prior  notice  to  Congress  of  plans  for  any
experiment or study to be conducted by the DoD involving the  use  of  human
subjects for the testing of a chemical agent.  Since there was  no  informed
consent obtained and without prior notice to Congress,  he  was  used  as  a
human test subject in violation of 50  USCS.   Public  Law  109-13  mandated
immediate payment of the death gratuity and  additional  death  gratuity  to
the former member's spouse.

Counsel's complete response, with attachments, is at Exhibit H.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA recommends denial.  JAA states the applicant  believes  Public  Law
109-13 allows for the payment of increased death gratuity  payments  to  all
members of the armed forces who die as a result of combat related  injury  -
whether or not they were serving on active duty at the time of  their  death
- as long as they died after 7 Oct 01.  Public Law 109-13, however, did  not
disturb the basic underlying criteria for payment of  death  gratuity:  they
armed forces member must have died under the conditions set forth in 10  USC
Section 1475 or 1476.   It  did  allow  for  an  additional  death  gratuity
payment to be made to the eligible next-of-kin  of  those  military  members
who died while on active duty as a result of a combat related disability  as
defined by 10 USC  Section  1413  incurred  on  or  after  7  Oct  01.   The
applicant's husband died 24 years after his  retirement  from  active  duty.
He did not  die  while  serving  on  active  duty  or  otherwise  under  the
conditions described in 10 USC Section 1475 or 1476.   Irrespective  of  the
requirement to be on active duty at the time of death,  any  combat  related
disability that caused or contributed to the former member's death  was  not
incurred on or after 7 Oct 01.

The complete JAA evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

In response to the JAA evaluation counsel states JAA misstates the  relevant
law and omitted vital points of both  fact  and  law  that  the  Board  must
consider in order to arrive at a  just  determination.   Counsel  reiterates
the applicable law and his prior contentions and  adds  that  JAA  indicates
only active duty personnel were eligible to confer a death gratuity  benefit
on their surviving beneficiary, which is not true.   Combat-Related  Special
Compensation (CRSC) recipients are, in fact, eligible.  Whether or  not  the
former member was a retiree is irrelevant as to  Section  1478.   A  retiree
death is completely different than a CRSC death, which is the only basis  of
criteria the Air  Force  can  consider  with  regard  to  a  death  gratuity
entitlement.   The  former  member's  death  resulted  from  combat  related
injuries as confirmed by the DVA.   JAA  cites  exclusions,  which  are  not
contained in the DoD Memorandum of anywhere else in the United States  Code.
 There is nothing in 109-13, or  in  the  DoD  Memorandum  stating  anything
remotely akin to JAA's proposition.  JAA states "Public Law 109-13  did  not
disturb the underlying criteria for payment of a death  gratuity  set  forth
in 10 USC Section 1475 or 10 USC Section 1476."  However, there  is  nothing
in the DoD Memorandum supporting this conclusion.  JAA's  entire  discussion
contradicts the June 24, 2005 DoD Memorandum that  clearly  spells  out  the
death gratuity payment guidelines for CRSC deaths.  JAA  fails  to  identify
any provision of law that states only  CRSC  post  2001  retirees,  who  die
after October, 2001 are eligible.  The law  states  deaths,  NOT  retirement
date  as  to  2001.   There  is  no  language  that  excludes  certain  CRSC
recipients.  On  its  face,  109-13  included  CRSC,  which  means  that  an
individual could not be on active  duty.   By  definition,  CRSC  recipients
cannot be on active duty.

Counsel's complete response, with attachments, is at Exhibit

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate  the
existence of an error or injustice which would warrant corrective action by
this Board.  In her  submission  to  the  AFBCMR,  applicant  contends  her
deceased father's next-of-kin is entitled to  the  death  gratuity  payment
authorized by Public Law 109-13.  Applicant argues that the Defense Finance
and Accounting Service has misinterpreted the law in denying her claim  and
asks the Board to "instruct DFAS to pay the claim."  The  Air  Force  Board
for Correction of Military Records, acting on behalf of  the  Secretary  of
the Air Force, is empowered to correct any military record  when  necessary
to correct an error or remove an  injustice  as  authorized  by  Title  10,
United States Code, Section 1552.  Section 1552 defines a  military  record
as "a document or other record that pertains to (1) an individual member or
former member of the  armed  forces,  or  (2)  at  the  discretion  of  the
Secretary of the military department concerned, any other  military  matter
affecting a member or former member of the armed forces..."  The  applicant
has not identified an error in her deceased father's record which  requires
correction, but instead appears to  be  asking  the  AFBCMR  to  provide  a
favorable  interpretation  of  Public  Law  109-13  and   direct   payment.
Notwithstanding the fact that a review of the evidence submitted  shows  no
clear error in the former member’s record that requires correction, in  the
interest of determining whether or not an injustice has occurred, we sought
an advisory opinion from the Air Force legal community.  In its evaluation,
HQ USAF/JAA opined that Public Law 109-13 was not applicable in  this  case
since the basic premise for a death gratuity payment, i.e., that the member
or former member must have died while serving on active duty or within  120
days after discharge or release as a result of combat-related factors,  was
not met.

4.   In  view  of  the  above,  and  after  careful  consideration  of   the
applicant's and counsel's submissions, we find no evidence of  an  error  in
this case and are not persuaded by their assertions, that the applicant  has
been the victim of an injustice.  The applicant’s  argument  in  essence  is
not that his record needs to be  corrected,  but  that  the  record  in  its
current state legally entitles him to a death gratuity.  The Office  of  the
Judge Advocate  General  advises  the  Board  panel  that  is  an  incorrect
interpretation of the law.  Its analysis seems correct to the panel, but  if
it is not, the applicant does not require a  correction  to  his  record  to
have a court of competent jurisdiction rule that  he  is  entitled  to  this
gratuity.  Having established no error in his military record,  we  find  no
basis upon which to recommend favorable consideration of this application.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  the  application  was
denied without a personal appearance; and that the application will only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2005-
03143 in Executive Session on 3 Oct 06, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Elwood C. Lewis, Member
      Mr. Todd L. Schafer, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Sep 05, w/atchs.
    Exhibit B.  Master Personnel Records.
    Exhibit C.  Letter, DFAS, dated 3 Jan 06.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Jan 06.
    Exhibit E.  Letter, DFAS, dated 28 Apr 06.
    Exhibit F.  Letter, SAF/MRBC, dated 5 May 06.
    Exhibit G.  Letter, SAF/MRBC, dated 12 May 06.
    Exhibit H.  Letter, Counsel, dated 21 May 06. w/atchs/
    Exhibit I.  Letter, Counsel, dated 10 Jul 06.
    Exhibit J.  Letter, USAF/JAA, dated 23 Aug 06.
    Exhibit K.  Letter, SAF/MRBC, dated 29 Aug 06.
    Exhibit L.  Letter, Counsel, dated 27 Sep 06, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair