RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00678
            INDEX CODE:  137.03
            COUNSEL:  NONE
            HEARING DESIRED: NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased son’s record be changed to show he was not retired  under
Public Law (PL) 1202, Temporary Disability  Retired  List  (TDRL)  but
rather, remained on active duty until the  time  of  his  death  on  2
September 2002.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Had she known the facts concerning  her  son’s  future  benefits,  she
would not have agreed to allow the Air Force to retire him.  She would
then be eligible for the retroactive Serviceman’s Group Life Insurance
(SGLI) portion of the Enhanced Death Benefit passed by Congress in the
fiscal year 2006 (FY06) Defense Bill.  She realizes  that  should  the
Board grant her request, any Survivor Benefit Plan (SBP)  annuity  she
currently receives would likely be reversed.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement and copies of correspondence between  herself  and  the  Air
Force.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

PL 109-163, dated 6 January 2006, authorized an increase in the amount
of death gratuity payable  to  $100,000  minus  any  gratuity  payment
previously paid.  The increase  in  payment  was  retroactive  to  the
eligible beneficiaries of service members  who  died  on  or  after  7
October 2001 who were not already in receipt of total  death  gratuity
payments of $100,000.  In addition to those service members  who  died
on active duty, service members whose death occurred within  120  days
from retirement and whose death is determined service connected by the
Department of Veteran’s  Affairs  (DVA)  are  also  eligible  for  the
additional payment.  Since the deceased member’s death occurred within
120 days from retirement and was deemed service connected, his  mother
was paid the increased retroactive death gratuity payment  of  $88,000
on 13 July 2006.  The law also authorized an additional death gratuity
payment of SGLI in the amount of  $150,000.   This  payment  was  also
retroactive for eligible beneficiaries of service members who died  on
or after 7 October 2001 through 11 May 2005 who did not qualify for an
additional death gratuity provided for in  PL  109-13.   However,  the
service member must have been serving on active duty at  the  time  of
their death in order  for  the  beneficiary  or  beneficiaries  to  be
eligible for the additional payment.  Under this provision of law, the
applicant is not eligible for additional SGLI gratuity  payment  since
her son was not on active duty at the time of his death.

The applicant had earlier petitioned the AFBCMR following the death of
her son to request his record show he died while in a  retired  status
rather than while on active duty.  The Board approved her  request  on
27 February 2003 and her son’s record was corrected to reflect he  was
retired under Title 10 United States Code (U.S.C.), Section 1202, TDRL
effective 1 September 2002.  The record was also corrected to  reflect
the decedent had  elected  SBP  coverage  for  his  mother  under  the
insurable interest option.   By  placing  her  son  on  the  TDRL  the
applicant received $10,000 from Service Disabled  Veteran’s  Insurance
(SDVI) which would not have been paid had  the  decedent  remained  on
active duty.   In  addition,  the  applicant  became  eligible  for  a
lifetime SBP annuity computed  under  the  insurable  interest  option
which today amounts to approximately $500 per month.   Conversely,  if
the decedents record had not been corrected and he remained on  active
duty at the time of his death, laws  governing  the  active  duty  SBP
benefit would not have  allowed  an  annuity  to  be  payable  to  the
applicant, nor would DVA insurance have been paid.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFC recommends denial.  DPFC states the applicant was  counseled
based upon the laws in effect at the time of her son’s death.   It  is
unreasonable to believe the Board or any person counseling  her  would
have knowledge of the  enhanced  benefits  legislation  approved  over
three years after her son’s death.  There is no error or injustice.

DPFC’s complete evaluation, with attachments, is at Exhibit B.

AFPC/DPPD recommends denial.  The preponderance of available  evidence
reflects that  the  Physical  Disability  Division  never  received  a
referral to the Physical Evaluation board but  acted  on  a  directive
issued by the AFBCMR.

DPPD’s complete evaluation is at Exhibit C.

_________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends she  wrote  many  letters  to  Congress  advocating
retroactive death benefits be extended to all those who died on active
duty since 7 October 2001; not  just  those  who  died  in  designated
combat zones.  The law was eventually passed.  The  retroactive  death
gratuity of $100,000 ($88,000  minus  previous  payment)  was  granted
based on interpretation; however the death  benefit  of  $150,000  was
not, because the bill lacked specific language to  include  those  who
died within 120 days.  Under normal circumstances this is not the case
and  the  120-day  cases  are  included  in  Serviceman’s  Group  Life
Insurance (SGLI).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of  error  or  injustice.   The  applicant,  mother  of  the
decedent who died while on active duty,  successfully  petitioned  the
AFBCMR in 2003 to have her son’s records corrected to show he had been
placed on the TDRL prior to his death.   The  result  of  such  change
rendered her eligible for  benefits,  which  at  the  time  were  more
advantageous.  AFPC/DPPD provided an advisory wherein they recommended
her request be approved.  An overriding reason presented by  DPPD  for
recommending approval was that she was forced to make  a  decision  on
one of two sets of benefits available to her as a result of her  son’s
impending death.  One set of benefits would be available  if  her  son
was retired prior to his death and the other would be  implemented  if
her son died while on active duty.  DPPD admitted  the  applicant  had
been miscounseled concerning her benefits.  Therefore, based  on  this
recommendation the Board granted her  request.   In  light  of  recent
changes to death benefit legislation, she now  requests  the  previous
decision of the AFBCMR be reversed  and  that  her  son’s  records  be
changed back to show that he died while on active duty.

After careful consideration of the facts  of  this  case,  it  is  our
opinion that favorable consideration of her request is warranted.   In
this regard, we note that she is in her current dilemma as a result of
the Board’s earlier correction of her son’s  record  to  show  he  was
retired prior to his death.  We note as well that the recent change to
death benefit legislation has been made retroactive to a time prior to
her son’s death.  That being the case, it is our opinion that had  the
legislation been in place during the period  when  she  was  initially
faced with the difficult decisions before  her,  we  are  inclined  to
believe that she would have made the choice  she  is  now  requesting.
She has  acknowledged  that  as  her  son’s  status  is  changed,  her
eligibility for SBP benefits will cease and she will  most  likely  be
responsible for returning the SBP payments she has  already  received.
She has acknowledged her understanding that she may have to repay  the
SDVI benefit she received and possibly any other monies she  may  have
received as a result of her son being  retired  prior  to  his  death.
Therefore, as we are satisfied  that  she  understands  the  financial
ramifications of  her  request,  we  recommend  that  the  records  be
corrected as indicated below.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 31 August 2002,  he
was not placed on the Temporary Disability Retired List, but rather he
remained on active duty until the time of his  death  on  2  September
2002.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 20 September 2007, under the provisions of AFI 36-
2603:

      Mr. Christopher D. Carey, Panel Chair
      Mr. Gregory A. Parker, Member
      Mr. James L. Sommer, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 February 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPFC, dated 22 March 2007, w/atchs.
    Exhibit C.  Letter, AFPC/DPPD, dated 28 March 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 20 April 2007.
    Exhibit E.  Letter, Applicant, dated 8 May 2007.




                                   CHRISTOPHER D. CAREY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


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Office Of The Assistant Secretary



AFBCMR BC-2007-00678




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to show that on 31 August
2002, he was not placed on the Temporary Disability Retired List, but
rather he remained on active duty until the time of his death on
2 September 2002.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency