RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                   DOCKET NUMBER: BC-2013-04620	
	   	   		    COUNSEL:   
    	  		            HEARING DESIRED:  YES
   

________________________________________________________________ 

APPLICANT REQUESTS THAT:

She receives an additional payment of $150,000 for Service 
Members Group Life Insurance (SGLI) or the decedent’s retirement 
date be changed to 1 Sep 05.  

________________________________________________________________ 

APPLICANT CONTENDS THAT:

On 20 Jul 05, the decedent was medically retired with a 
100 percent disability rating.  On 25 Jul 06, he passed away.

Per 38 U.S.C. § 1968(a)(1)(A) a two year extension of SGLI 
coverage after the date of separation or release from active 
duty for medical retirement with a 100 percent disability rating 
was provided.  

She received an SGLI payment of $250,000, however, the Fiscal 
Year (FY) 2006 National Defense Authorization Act (NDAA) 
implemented Public Law 109-163 increasing SGLI coverage to 
$400,000 effective 1 Sep 05.  However, at the time of his 
medical retirement, they were not advised about the pending SGLI 
coverage.

Despite the decedent’s incompetence to make informed decisions 
regarding his involuntary retirement no guardian or legal 
representative was appointed.  Even if it is concluded the SGLI 
coverage is limited to the amount that was in effect on the date 
of his death, there is substantial evidence of an error or 
injustice as there was no counseling on SGLI by the Physical 
Evaluation Board Liaison Officer (PEBLO) during the pre-
separation counseling process.  

In a letter dated 15 Jun 11, the Office of Service Members Group 
Life Insurance (OSGLI) advised the applicant that the coverage 
was based on the amount in effect at the time the decedent was 
retired and denied her request for the additional payment.

She was pre-occupied with the loss of her husband and raising 
two children and did not know how to file an application to the 
Board until recently.      
Her counsel references two cases involving retroactive increase 
of SGLI coverage.  Although in the case of AR20080005338 the 
Board determined the applicant failed to submit evidence there 
was an error or injustice and denied the request, it was decided 
in the case of AR20060009083 that in keeping with the original 
intent of maximizing the applicant’s benefits, the service 
member’s records were corrected to show that he was on active 
duty at the time of his death and not on the Temporary 
Disability Retirement List (TDRL).  If a service member’s status 
can be changed based on equitable considerations and in keeping 
with the original intent of maximizing benefits, then surely the 
decedent’s retirement date can be adjusted considering the lack 
of counseling on the SGLI coverage.  The decedent was entitled 
to the increase in the SGLI coverage since his two year extended 
SGLI eligibility was based on 100 percent disability and the 
failure to pay the full amount of the SGLI coverage constitutes 
an error or injustice.  

In support of her requests, the applicant provides a letter from 
counsel, marriage certificate, Medical Evaluation Board (MEB) 
and Physical Evaluation Board (PEB) reports, medical 
documentation, SGLI payment notification, letter from OSGLI and 
other various documents associated with her request.

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

________________________________________________________________ 

STATEMENT OF FACTS:

Per 38 U.S.C. § 1968 SGLI coverage is provided for members who 
are 100 percent disabled at the time of separation for up to two 
years.

According to AF Form 618, Medical Board Report, dated 25 May 05, 
the decedent was evaluated by an MEB and referred to the 
Informal Physical Evaluation Board (IPEB).

According to AF Form 356, Findings and Recommended Disposition 
of USAF Physical Evaluation Board, dated 1 Jun 05, the IPEB 
found him unfit for duty and recommended permanent retirement 
with a disability rating of 100 percent for a diagnosis of 
frontotemporal dementia associated with cognitive disorder, 
secondary to primary neurodegeneration, bipolar disorder, social 
and industrial adaptability impairment and found him incompetent 
for pay and records. 

Per Special Order Number ACD-00775 dated 9 Jun 05, he was 
medically retired effective 20 Jul 05 with a compensable 
percentage for physical disability of 100 percent.  

He served 21 years, 1 month and 20 days on active duty.
Effective 1 Sep 05, Public Law 109-13 increased SGLI coverage 
from $250,000 to $400,000 for all service members who died while 
on active duty retroactive to 1 Oct 01.  

On 25 Jul 06, the decedent died.  OSGLI payment notification 
dated 18 Aug 06 shows the decedent’s spouse, received 
$250,608.17 for death benefits and settlement interest.

________________________________________________________________ 

AIR FORCE EVALUATION:

AFPC/DPFD recommends denial of his request to change his 
retirement date to 1 Sep 05.  The preponderance of evidence 
reflects that no error or injustice occurred during the 
disability process or at time of separation.  On 1 Jun 05, the 
IPEB found him unfit for duty and recommended permanent 
retirement with a disability rating of 100 percent.  On 5 Jun 
05, the applicant on behalf of the decedent concurred with the 
findings and he was retired effective 20 Jul 05.

The complete DPFD evaluation is at Exhibit B.

AFPC/DPFC recommends denial of the applicant’s request for an 
additional $150,000 SGLI payment.  Based on the denial 
recommendation of DPFD to change the decedent’s retirement date 
beyond the implementation of Public Law 109-13 effective 1 Sep 
05, DPFC recommends the Board disapprove the applicant’s 
request.  This recommendation is based on his ineligibility for 
the increase of death benefit under statute since his retirement 
was effective 20 Jul 05.  

The complete DPFC evaluation is at Exhibit C.

AFPC/JA recommends denial.  The applicant has failed to 
establish any error or injustice in this case.  The applicant 
contends an injustice because after the IPEB found the decedent 
unfit and recommended permanent retirement with a disability 
rating of 100 percent the PEBLO did not counsel them that the 
SGLI policy limit would be raised to $400,000 on 1 Sep 05; and 
had they known it was going to be increased they would have 
delayed his retirement to qualify for the increase.  Instead he 
retired on 20 Jul 05.   

The applicant assumes the decedent would have had the ability to 
delay his disability separation had he known the SGLI law was 
being amended on 1 Sep 05.  AFI 36-3212, Physical Evaluation for 
Retention, Retirement, and Separation, states AFPC/DPFD sets the 
scheduled retirement or discharge date.  

The applicant states she discovered she would not receive the 
maximum coverage of the SGLI benefits shortly after his death on 
25 Jul 06.  Any alleged wrongful acts of the PEBLO would have 
occurred prior to his death.  The application alleging a 
wrongful act in 2005 and discovery of a wrongful act in 2006 is 
not timely filed in 2013.  By law and regulation, AFI 36-2603,  
Air Force Board for Correction of Military Records, paragraph 
3.5, an application must be filed within three years after an 
error or injustice is discovered, or with due diligence, should 
have been discovered.  An application filed later is untimely 
and may be denied by the Board on that basis unless it should be 
excused in the interest of justice. 

Federal courts have consistently defined “injustice” within the 
meaning of 10 U.S.C. § 1552 as that behavior or action that 
rises to the level that “shocks the sense of justice.”  We have 
noted previously to this Board, this is a high standard which 
requires more than merely deciding that an action taken might be 
viewed as unfair or which has had arguably adverse consequences.  
It may be viewed as unfair that the applicant received the 
amount of $250,000 instead of $400,000 in SGLI benefits because 
the law changed after he retired; however, the applicant’s blame 
is misplaced to think it is the PEBLO’s responsibility to tell 
her to manipulate the system by purposely delaying the date of 
separation solely for monetary purposes.  

The complete JA evaluation is at Exhibit D. 

_____________________________________________________________ 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that 38 U.S.C. § 1968(a)(1)(A), qualified the 
decedent for extended SGLI coverage because he was 100 percent 
disabled.  In relevant part, this section provides that for 
members such as the decedent, SGLI coverage shall continue in 
effect and such insurance shall cease as follows two years after 
the date of separation or release from such active duty.  In the 
case of service members who are entitled to extended coverage, 
the statute does not create different classes of coverage 
depending on the date of the service member’s retirement.  The 
statute does not state coverage is limited to the amount that 
was in effect on the date of the member’s retirement.  Had 
Congress intended to create different classes of coverage 
depending on the retirement date, it would have said so.

The JA simply states the applicant has been unsuccessful in her 
attempt to persuade OSGLI that she is entitled to the statutory 
increases but does not provide any legal authority to support 
OSGLI contention that the amount of SGLI coverage is fixed as of 
the date of the service member’s disability retirement.  
Instead, because 100 percent disabled retirees are entitled to 
extended coverage, they also are entitled to any increases in 
such coverage existing as of the date of their death or 
expiration of coverage whichever first occurs.

In regards to the untimely file, it was not until the spring of 
2011 that she asked the casualty survivors benefits office at 
Joint Base Langley-Eustis, VA to request a review of her prior 
claim.  It was not until 2012, that she discovered OSGLI’s 
interpretation was erroneous and inconsistent with the 
controlling federal statutes.  The major error that was 
committed in this case was the misinterpretation of federal law 
by OSGLI.  This case and the issue of when an applicant can be 
considered to have discovered an error or injustice can be 
distinguished from the facts at issue in McFarlane v. Secretary 
of the Air Force, 867 F. Supp. 405 91994.  In that case, a 
surviving military spouse did not file her application with the 
Board to correct the amount of her survivor benefits annuity 
until seven years after her husband had died.  Even if the 
application is untimely, the untimeliness should be excused in 
the interest of justice.

Congress passed legislation on 11 May 05 which increased the 
amount of SGLI coverage effective 1 Sep 05.  The memorandum by 
the JA argues that because DTM-11-015 does not include SGLI 
benefits as one of the topics with which a PEBLO must provide 
counseling there is no evidence of a breach of any duty 
regarding the adequacy of the disability retirement counseling 
provided to the decedent. DODI 1332.18, Separation or Retirement 
for Physical Disability, identifies counseling as one of the 
four components to the military disability retirement system.  
What is not addressed by the SJA’s memorandum is why eligibility 
for extended SGLI coverage was not included as a mandatory topic 
for counseling of 100 percent disabled service members.  This 
omission is surprising considering that in cases where 
expeditious processing is requested, the Air Force casualty 
assistance representative must provide counseling regarding the 
Survivor Benefit Plan (SBP), Dependency and Indemnity 
Compensation (DIC), SGLI, Veterans Group Life Insurance (VGLI), 
National Service Life Insurance (NSLI) which is part of the 
imminent death processing checklist included in the Air Force 
Disability Counseling Guide for PEBLOs.

The applicant has since located a copy of DD Form 2648, Pre-
Separation Counseling Checklist, dated 28 Jun 05, which shows 
the decedent signed the checklist even though he was no longer 
competent.  More importantly, the checklist makes no provision 
for any counseling on SGLI coverage.  The logical conclusion is 
that neither the applicant nor the decedent was told about the 
increase in SGLI coverage because the Air Force had not revised 
the counseling procedures. Common sense suggests that counseling 
on extended SGLI coverage should be required in all cases 
involving 100 percent disabled service members who are eligible 
for such extended, temporary coverage particularly in cases 
involving progressive, terminal conditions.  What makes this 
case unique is that he was processed for medical retirement 
after Congress passed legislation authorizing an increase in 
SGLI coverage but was retired 43 days before the increase became 
effective. 

Had he been aware that the increased amount of coverage would 
become effective on 1 Sep 05; a rational person would have 
considered what options they might have to delay retirement.  
The obvious procedure for the applicant would have been to 
either request a formal PEB (which was a matter of right) or 
take ordinary leave.  

There is an issue as to whether the applicant had the authority 
to sign a waiver on behalf of her husband.  The form and the 
guide for PEBLO’s both assume that a spouse may make binding 
decisions on behalf of their incompetent spouse but the 
applicant had not been appointed either as guard or conservator 
of his estate by any court.  This issue is mentioned to point 
out that the applicant’s decision to waive the formal PEB on 
behalf of the decedent was made without the benefit of any legal 
advice, without the legal authorization, without counseling by 
anyone in the Air Force regarding the pending increase in SGLI 
coverage, and without counseling as to whether his retirement 
should be postponed until after 1 Sep 05.

The decedent should be considered eligible for the increased 
SGLI that became effective on 1 Sep 05 while on extended SGLI 
coverage or his retirement date should be amended to 1 Sep 05 to 
correct the error or injustice regarding his retirement date 
established without the benefit of informed consent.

In further support of her request, the applicant provides 
counsel’s statement, copies of DD Form 2648 and AF Form 1180, 
Action on Physical Evaluation Board Findings and Recommended 
Disposition.   

The complete submission, with attachments, is at Exhibit F.  

________________________________________________________________ 

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.    

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case and do not find that it supports a determination that 
the decedent’s records should be changed to reflect an 
additional $150,000 SGLI payment or to change his retirement 
date to 1 Sep 05.  We note that 38 U.S.C. § 1968(a)(1)(A), 
qualified the decedent for extended SGLI coverage because he was 
100 percent disabled; however, as pointed out by DPFC, he is 
ineligible for the increase of death benefit under the statute 
since his retirement was effective 20 Jul 05 which is before 
Public Law 109-13 was implemented on 1 Sep 05.  While counsel’s 
assertions of miscounseling are noted, he has not provided 
substantial evidence which, in our opinion, successfully refutes 
the assessment of this case by the Air Force Offices of Primary 
Responsibility.  Additionally, counsels also asserts, in 
essence, that relief is warranted based on precedence and cites 
two Army BCMR cases, AR20060009083 and AR200800538 that he 
believes supports her requests.  However, we disagree.  Every 
case before this Board is considered on its own merit since the 
circumstances of each case are seldom identical.  After a 
careful review of the cases, we find AR20060009083 is not 
comparable to the existing case.  In AR20060009083, the 
applicant was improperly counseled that her husband had to be 
retired in order for her to receive both the SGLI and Survivor 
Benefit Plan (SBP) annuity because he did not have 20 years of 
service.  However, Public Law 107-107 changed in 2001 and the 
Army Board determined the increased SGLI coverage and SBP 
benefits would have been awarded had he died on active duty and 
granted the request.  Although AR20080005338 is similar to the 
request before us, it was actually denied, therefore, this 
request adds no credence to the applicant’s request for an 
additional SGLI payment or to change the decedent’s retirement 
date to 1 Sep 05.  In view of the foregoing and in the absence 
of evidence that the applicant was treated differently than 
others similarly situated, we find no equitable basis to grant 
any of the relief sought in this application. 

4.  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 issue 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 
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 Docket Number BC-
2013-04620 in Executive Session on 8 Jul 14, under the 
provisions of AFI 36-2603:

     , Panel Chair
     , Member
     , Member

The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 16 Sep 13, w/atchs.
   Exhibit B.  Letter, AFPC/DPFD, dated 8 Nov 13.
   Exhibit C.  Letter, AFPC/DPFC, dated 16 Dec 13.
   Exhibit D.  Letter, AFPC/JA, dated 24 Dec 13.
   Exhibit E.  Letter, SAF/MRBR, dated 24 Jan 14.
   Exhibit F.  Letter, Applicant’s Counsel, dated 20 Feb 14, w/atchs.