RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                      NOVEMBER 2, 2004
      DOCKET NUMBER:             AR2004100383


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Department of the Army or
the Department of Veterans Affairs (VA) provide her retroactive survival
benefits from 1973 until March 2001.

2.  The applicant, the widow of a deceased Army warrant officer, a former
service member (FSM), states, in effect, that there has been an injustice
and that it is dishonoring an American hero and it is unacceptable.  She
wants the injustice rectified.  She needs to be compensated for all the
years that she was without benefits due to the incompetence of our military
at the time of her husband's disappearance.

3.  The applicant provides a letter addressed:  "To Whom It May Concern" of
over three pages in length, authored by her sister-in-law, detailing the
events that took place up to the time that her husband was listed as
missing in action and later declared to be dead; a number of other
documents, including photographs, a Vietnamese document that appears to be
a marriage certificate, and a series of official Army documents.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the US Army Reserve on 13 May 1968.  On 9 August
1968, the FSM enlisted in the Regular Army for a period of 3 years.  He
successfully completed basic combat training at Fort Lewis, Washington, and
advanced individual training at Fort Rucker, Alabama.  On completion of his
advanced training, he was awarded the military occupational specialty 67N,
UH-1 Helicopter Repairman.

2.  The FSM volunteered for and successfully completed Warrant Officer
Flight Training and on 29 November 1971 he was appointed an officer in the
Army of the United States in the grade of WO1.

3.  The FSM was assigned to duty in Vietnam and arrived there on 11
February 1972.  The FSM was assigned to the 62nd Aviation Company, 11th
Combat Aviation Group, 1st Aviation Brigade.

4.  The FSM completed a DA Form 41, Record of Emergency Data, on
17 February 1972.  On 23 April 1971 he completed another DA Form 41.  In
both these records of emergency data, on which the FSM designated the
beneficiary(ies) for insurance proceeds, death gratuity payment, and any
unpaid pay and allowances, and the percentage to be paid each designee, he
listed his parents.  Each of his parents was to receive 50% of what was due
and payable.

5.  The FSM apparently married the applicant on 7 December 1972.  The
Government of Vietnam recorded the marriage on 26 December 1972.

6.  There is no evidence that the FSM changed his service personnel records
to either change his marital status or his election of beneficiaries after
he married the applicant.

7.  The FSM was officially listed as missing in action in Vietnam on 8
January 1973.  On 20 October 1978, Department of the Army changed his
status to dead and the presumed death to have occurred on 5 October 1978.

8.  On the date he was officially listed as missing in action, the FSM had
completed 4 years and 5 months service on active duty.

9.  Item 9, Interested Persons (Name, Address, Relationship), of DD Form
1300, Report of Casualty, shows the date of the last prepared DA Form 41
(23 April 1971) and that distribution of insurance and all other death-
related insurance, pay and other benefits were made to his parents in equal
shares, in accordance with his last officially expressed wishes.

10.  The Inquiries Division, Centralized Pay Operations, U.S. Army Finance
& Accounting Center, Indianapolis, Indiana, notified the VA, Records
Development Division, that the FSM's parents received unpaid pay and
allowances.  The final date of entitlement shown on the source document,
Pay and Allotment Information – Deceased Member, is 5 October 1978.

11.  The Survivor Benefit Plan (SBP) provides an annuity for the surviving
spouse of an active duty Soldier who has attained eligibility for
retirement.  For surviving spouses of retirement-eligible active duty
Soldiers, the annuity normally will be 55% of the retired pay to which the
member would have been entitled.

12.  Servicemen's Group Life Insurance (SGLI) is a group life insurance
policy purchased from a commercial life insurance company by the Department
of Veterans Affairs (VA).  An individual policy is not issued to a Soldier.
 The insurance issued under the group policy is term insurance and there is
no loan, cash, paid-up, or extended insurance values.  The maximum amount
of insurance for each eligible member at the time of the FSM's death was
$15,000.  The election form (VA Form 29-8286 or SGLV 8286) signed by the
FSM, which is in his official records, is the official document used in the
settlement and payment of the insurance proceeds.  Soldiers normally
specify by name the beneficiary(ies) to receive payment of SGLI in the
event of his/her death.  When beneficiaries are designated by name, the
SGLI proceeds will be paid to those named.

13.  In the letter addressed: "To Whom It May Concern," it is alleged that
the VA has provided the applicant $1031 per month in DIC (Dependency and
Indemnity Compensation) payments since March 2001.  The applicant
calculates that she is owed $346,416 in retroactive unpaid benefits.

14.  Dependency and Indemnity Compensation (DIC) is a survivor benefit,
which is administered by the VA.  DIC may be available for surviving
spouses who have not remarried, unmarried children under 18, helpless
children, those between 18 and 23 if attending a VA-approved school, and to
low-income parents of deceased service members or veterans.

DISCUSSION AND CONCLUSIONS:

1.  On the date the FSM was officially listed as missing in action, he had
completed 4 years and 5 months service on active duty.  With this length of
service on active duty, the FSM was not eligible for non-disability
retirement; therefore, the applicant is not entitled to Survivor Benefit
Payments.

2.  The distribution of death-related insurance and other benefits was made
to the FSM's parents in equal shares, in accordance with his last
officially expressed wishes as shown in Item 9, DA Form 1300, which was
extracted from the FSM's last prepared DA Form 41 (23 April 1971).

3.  The applicant alleges that the VA has provided her $1031 per month in
DIC payment since March 2001.  The VA administers the DIC Program.
Decisions arrived at, by this Board, have no force or effect on
determinations reached by
that agency.  The VA operates in conformance with guidelines and laws
enacted for the optimum administration of all its available benefits
programs.  It is suggested that the applicant make application to that
agency for the retroactive survivor benefits that she now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mkp_____  jrs _____  rld  _____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.






            ___Margaret K. Patterson____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004100383                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000                                |
|2.  347                 |137.0100                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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