RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-00700
INDEX CODE: 110.00
COUNSEL: NONE
HEARING DESIRED: NO
___________________________________________________________________
APPLICANT REQUESTS THAT:
1. Her deceased son's records be corrected to reflect he was still on
active duty at the time of his death.
2. She be authorized the additional death gratuity payment of $150,000.
___________________________________________________________________
APPLICANT CONTENDS THAT:
On 30 August 2003, her son was retired due to his imminent death. As a
result of his retirement, his beneficiary immediately became ineligible to
receive an additional death gratuity of $150,000. Since his death various
laws have changed that would entitle surviving family members to both the
Survivor Benefit Plan (SBP) monthly annuity payments and additional death
gratuity.
In support of her request, the applicant submits copies of personal
letters, a copy of DD Form 1300, Report of Casualty, copies of letters
regarding an SGLI increase and her sons Department of Veterans Affairs
(DVA) Rating Decision.
Her complete submission, with attachments, is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The decedent was divorced, had a dependent child, and was assigned to Eglin
Air Force Base prior to being placed on the Temporary Disability Retired
List (TDRL) with a 100% disability rating on 30 August 2003. On 4
September 2003, the applicant was briefed on the options and effects of the
SBP and requested an election for child-only coverage based on full retired
pay be established on his behalf. On 7 September 2003, the former service
member died and on 1 October 2003, the Secretary of the Air Force
authorized the election to be retroactively established. His son began and
continues to receive SBP monthly payments of $1,108.
___________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSIAR recommends no corrective action be taken that would endanger
the decedent’s son’s entitlement to SBP payments. DPSIAR states that prior
to enactment of Public Law (PL) 107-107 (28 December 2001), SBP was not
authorized for survivors of members who died on active duty, unless the
member had 20 years of active service prior to his or her death. Following
PL 107-107, survivors became entitled to SBP for any death on active duty
in which it was determined that the death was in the line of duty (ILOD) on
or after 10 September 2001. A child is an eligible SBP beneficiary until
18, 22 if a full-time student or until marriage at any age. In the event
the Board grants relief, neither his son's eligibility for SBP payments,
nor the amount would be affected unless the former member's death was
determined to not be ILOD. If not ILOD there would be no entitlement to
SBP as the former member only had 17 years of service at the time he was
placed on the TDRL. DPSIAR recommends no corrective action be taken that
would endanger the decedent’s son’s entitlement to SBP payments.
The complete DPSIAR evaluation is at Exhibit B.
HQ AFPC/DPWC recommends denial of the applicant’s request for an additional
death gratuity payment. DPWC states PL 109-l63 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 DVA are also eligible for the
additional payment. Since the former member's death occurred within 120
days from retirement and was deemed service-connected, his son was paid the
increased retroactive death gratuity payment of $88,000 on 27 June 2006.
The law also authorized an additional death gratuity payment 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.
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 SGLI payment. Under this provision of the law
the former member’s son is not eligible for the additional SGLI gratuity
payment since he was not on active duty at the time of his death. In
compliance with public Law 109-163, all 120-day retirees or separatees were
not eligible for the additional death gratuity payment. Therefore, there
is no evidence of an error or injustice.
The complete DPWC evaluation, with attachments, is at Exhibit C.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 13
June 2008 for review and comment within 30 days. As of this date, this
office has received no response (Exhibit D).
___________________________________________________________________
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. After a thorough review of the
evidence of record and applicant's complete submission, we are not
persuaded that the former member’s records should be corrected to reflect
his death occurred while on active duty or corrected in a manner which
would allow entitlement to additional benefits that have been subsequently
authorized by law. The decision to retire her son due to his imminent
death appears to have been the appropriate decision to make at the time
under existing laws, which provided for entitlements that were the most
beneficial and advantageous to the former member’s surviving son at the
time. The applicant’s case has undergone an exhaustive review by AFPC/DPWC
and we did not find the evidence provided, sufficient to overcome their
assessment of the case. Therefore we agree with the rationale expressed as
the basis for our decision that the applicant has failed to sustain her
burden of proof of the existence of an error or injustice in this case.
Absent persuasive evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.
___________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of 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-2008-
00700 in Executive Session on 25 September 2008, under the provisions of
AFI 36-2603:
Mr. Michael J. Novel, Panel Chair
Mr. Garry G. Sauner, Member
Ms. Elwood C. Lewis III, Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-
2008-00700 was considered:
Exhibit A. DD Form 149, dated 31 January 2008, w/atchs.
Exhibit B Letter, AFPC/DPSIAR, dated 4 April 2008.
Exhibit C Letter, AFPC/DPWC, not dated, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 13 June 2008.
MICHAEL J. NOVEL
Panel Chair
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