| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Mr. Richard T. Dunbar | Member | ||
| Mr. Kenneth W. Lapin | Member |
APPLICANT REQUESTS: In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he held the rank and grade of Major, O-4 so her Dependency and Indemnity Compensation (DIC) may be increased.
APPLICANT STATES: That the FSM was posthumously promoted to Major retroactive to 30 March 1966. He was on the promotion list for several months and was due to be promoted on 20 August 1966.
EVIDENCE OF RECORD: The FSM’s military records show:
After having had prior enlisted service, he was commissioned out of the U. S. Military Academy and entered active duty on 4 June 1957. He was promoted to Captain, O-3 on 4 June 1964. He arrived in Vietnam on or about 25 March 1966. He was killed in action on 12 August 1966.
By message date/time group 1300Z August 1966, Headquarters, Department of the Army, Casualty Branch informed the Commanding General, U. S. Army Vietnam that the FSM had been posthumously promoted to the rank of Major effective 30 March 1966 with a date of commission of 18 August 1966.
Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system. In pertinent part, it states that an officer may be posthumously promoted if, at the time of death, proper authority had approved the recommendation of the promotion selection board at the time of death, the death was not due to the officer’s own misconduct, and the officer was not on an unauthorized absence.
Title 10, U. S. Code, section 1521 states that the President may issue an appropriate commission in the name of a member of the armed forces who, after 3 September 1939, was officially recommended for appointment or promotion to a commissioned grade and the recommendation for whose appointment or promotion was approved by the Secretary concerned but was unable to accept the promotion of appointment because of death in line of duty. Section 1523 states that no person is entitled to any bonus, gratuity, pay, or allowance because of a posthumous commission or warrant.
The Department of Veterans Affairs (DVA) booklet, Federal Benefits for Veterans and Dependents, 2002 edition, states that DIC payments may be available for a surviving spouse who has not remarried. One of the eligibility criteria is for the deceased to have died from a disease or injury incurred or aggravated while on active duty.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. At the time of the FSM’s death, the Army promoted him, thereby showing that he held the rank of Major. As the applicant acknowledges, he would not have ordinarily been promoted until shortly after his death. The Board offers the applicant condolences on her loss; however, by law the FSM’s posthumous promotion did not create an entitlement to any bonus, gratuity, pay, or allowance. Dependency and Indemnity Compensation is a DVA program. The DVA operates under its own policies and laws and the Department of Defense has no jurisdiction over its affairs if it chooses not to make an exception to the law.
3. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__RVO__ __RTD__ __KWL__ DENY APPLICATION
| CASE ID | AR2002072513 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/07/25 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 131.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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