RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20080005338 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 that the records of her husband, a former service member (FSM), be corrected to show that he was not retired, but on active duty at the time of his death, thereby entitling her to:

	a.  receive $150,000 in additional Servicemembers' Group Life Insurance (SGLI); 

	b.  receive extended TRICARE Prime health care eligibility at the active duty rate, for three years, at no cost for dependents of Soldiers who die on active duty; and

	c.  receive reimbursement for the unused days of government housing benefit, for one year from the date of death, at the current Basic Allowance for Housing at his pay grade at the time of his death.   

2.  The applicant states that shortly after her husband’s return from Afghanistan, he was involved in a motor vehicle accident on 24 July 2002, at Fort Hood, Texas.  He suffered fractures to his leg and arm.  During his treatment, he was also diagnosed with Stage III, Hodgkin's Lymphoma (cancer involving cells of the immune system).  She describes the events as follows:

	a.  the FSM was referred to Brooke Army Medical Center, Fort Sam Houston, Texas, for lung function tests, high resolution Computed Tomography (CT) scans, bronchoscopy, and six cycles of chemotherapy from August 2002 to January 2003.  However, he continued to have breathing problems and upon re-admittance at the hospital, the FSM was found to have developed pulmonary fibrosis and toxicity from the bleomycin he took for his chemotherapy.  His condition worsened and he was unable to care for himself without causing pain and discomfort;

	b.  on 8 April 2003, he was transported by ambulance, admitted to the Intensive Care Unit (ICU) at Fort Hood, Texas, and was placed on a ventilator.  Within a week, doctors determined that he would not survive the next 72 hours; 

	c.  on 14 April 2003, she was counseled by Army personnel and medical staff that her husband would be medically retired and placed on the Temporary Disability Retired List (TDRL) with a 100 percent rating and that his condition was sustained in line of duty.  She elected to have him medically retired when it became obvious that his death was imminent.  Specifically she was told her husband had to be retired in order for her to receive the SGLI and the Survivor Benefit Plan (SBP) benefits.  Accordingly, he was placed on the TDRL on 14 April 2003.  He died on 15 April 2003; 

	d.  in August 2006, she received a letter from the Army Human Resources Command (HRC), Alexandria, Virginia (VA), informing her of her eligibility for the increased death gratuity from $12,000.00 to $100,000.00 due to legislative changes.  Subsequently, she started inquiring about her eligibility for the increased SGLI benefit as well, and sought help from a Member of Congress.  She understood that the imminent death retirement process was used to provide SBP annuity to the surviving spouse of a Soldier who dies on active duty, but is ineligible for 20-year retirement.  She then became aware that legislative changes made it unnecessary for her husband to have been medically retired and that he should have remained on active duty at the time of his death; 

	e.  Public Law 107-107 removed the requirement of 20 years of service as long as the active duty member’s death was in line of duty.  The law eliminated the imminent death process in 2001, but the Department of Defense (DOD) did not implement the law until 2002.  She further states that she should have been counseled about the changes in the law and the personnel who counseled her should have known about the changes in policy and should have afforded her the protection created by those changes; 

	f.  with the changes in legislation affecting SBP and SGLI, she now realizes she would have been better off financially if she had not agreed to have her husband medically retired.  She applied for both the increased Death Gratuity payment and SGLI; she was granted the increased death gratuity and received an additional $88,000.  She also received $250,000 SGLI; however, because her husband was not on active duty at the time of his death, she did not qualify for the increased SGLI benefit from $250,000.00 to $400,000.00; 

	g.  because of the unnecessary medical retirement of her husband, she did not receive the benefits of Public Law 109-13 and Public Law 109-163 that increased the SGLI payment from $250,000.00 to $400,000.00 for the beneficiaries of Soldiers who died on active duty from 2001 to the present.  Additionally, she should have been allowed to receive the extended TRICARE Prime health benefits at the active duty rate for three years at no cost to her.  Furthermore, since the family was living in government housing at the time of her husband’s death, she should have been eligible to continue to live in government housing for one year from the time of death or reimbursed for the unused days at the current Basic Allowance for Housing rate for his grade at the time of his 
death; and

	h.  she contends that because of the legislative changes that have taken place in the last couple of years, she would have been better off financially if she had not taken the Army's advice.  If her late husband was not retired, she would now be entitled to the full $400,000.00 SGLI payment.  As such, she requests that the Board exercise its authority to reverse her husband's medical retirement at the time of his death so that she can receive the retroactive increase of $150,000.00 in SGLI.  She concludes that her husband should not have been placed on the TDRL before his death as it was no longer necessary.  He was on active duty at the time of his terminal diagnosis and his injuries were found to be in line of duty.  Accordingly, she requests that his records be corrected to show he died on active duty. 

3.  The applicant provides the following additional documentary evidence in support of her application:  

	a.  The FSM’s Certificate of Death, dated 15 April 2003.

	b.  DA Form 2166-6 (Noncommissioned officer (NCO) Evaluation Report), for the period from 200109 through 200205.

	c.  DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 31 March 2003.

	d.  Line of Duty Investigation Determination Memorandum, dated 14 April 2003.

	e.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 April 2003.

	f.  HRC-Alexandria, VA, letter, dated 30 August 2006, increased death gratuity benefit.   

	g.  Correspondence with a Member of Congress, dated on miscellaneous dates.

	h.  Internet printouts: extracts of Public Laws 101-107, 109-13, and      109-163.

	i.  DD Form 1300 (Report of Casualty), dated 1 May 2003.

	j.  DD Form 214 (Certificate of Discharge or Release from Active Duty), dated 14 April 2003.
	k.  Copy of the FSM’s retirement order; enlisted record brief (ERB); DD Form 93 (Record of Emergency Data); and Servicemember’s Group Life Insurance Election and Certificate.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the FSM's records be corrected to show he died on active duty. 

2.  Counsel did not make a statement.

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he enlisted in the Regular Army on 16 October 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 56M (Chaplains Assistant).  He subsequently executed a series of reenlistments in the Regular Army.  The highest rank/grade he attained during his military service was staff sergeant (SSG)/E-6.  The FSM’s records also show he served in Southwest Asia from 27 August 1991 to 2 December 1991 and in Korea from 8 April 1997 to 5 April 1998. 

2.  The FSM’s awards and decorations include the Army Commendation Medal, the Army Achievement Medal (5th Award), the Army Lapel Button, the Army Good Conduct Medal (2nd Award), the National Defense Service Medal (2nd Award), the Armed Forces Expeditionary Medal, the Southwest Asia Service Medal with three bronze service stars, the Humanitarian Service Medal, the Noncommissioned Officer’s Professional Development Ribbon, the Overseas Service Ribbon (2nd Award), the United Nations Medal, the Kuwait Liberation Medal (K), the Kuwait Liberation Medal (SA), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Grenade Bar.

3.  The FSM’s DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 September 2002, shows the FSM suffered a closed head injury, fractured femur, and fractured right wrist, when he was involved in a motor vehicle accident on 24 July 2002.   

4.  Upon admittance to the hospital in July 2002, the FSM was diagnosed with Stage III Hodgkin's lymphoma.  He underwent six cycles of ABVD (Adriamvcin, Bleomvcin, Vinblastine, and Dacarbazine) chemotherapy from July 2002 to February 2003.  He subsequently developed an increasing dyspnea (shortness of breath) and required oxygen treatment.  Upon admittance to Darnell Community Hospital, Fort Hood, Texas, he was found to have an oxygen requirement and an abnormal chest x-ray with interstitial infiltrates in the bilateral bases.  He was subsequently transferred to Brooke Army Medical Center, Fort Sam Houston, Texas, for further evaluation.  He was determined to have suffered pulmonary fibrosis and toxicity from the bleamycin that was included in the chemotherapy regimen.

5.  On 31 March 2003, an MEB convened at Brooke Army Medical Center, Fort Sam Houston, Texas, and found the applicant suffered from Stage III-A Hodgkin's disease, status post six cycles of ABVD chemotherapy.  The MEB recommended the FSM be referred to a PEB.  The applicant, on behalf of the FSM, concurred with the MEB’s approved findings and recommendations, on 14 April 2003. 

6.  In early April 2003, the FSM was readmitted to the hospital after he developed increasing shortness of breath and a cough.  During evaluation, he was noted to have significant oxygen requirement and significant leukocytosis.  He was intubated in the emergency room on 8 April 2003.  By 11 April 2003, he was relatively stable but still required the support of the ventilator.  However, on 13 April 2003, he developed an increased oxygen requirement and showed increased opacities throughout the lungs, suggesting a worsening of his pulmonary disease.  On 14 April 2003, his condition worsened despite being on 100 percent oxygen.  The attending physician noted that death was imminent within 72 hours.

7.  On 14 April 2003, by memorandum, the FSM’s immediate commander certified that the FSM’s injury was determined to be in line of duty.

8.  On 14 April 2003, a PEB convened at Fort Sam Houston, Texas, and found the FSM physically unfit for duty due to bleomycin induced lung injury, status post six cycles of chemotherapy in treatment of Stage III-A Hodgkin's disease.  The FSM was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 7709 and 6829.  The PEB found the FSM physically unfit and recommended a combined rating of 100 percent disability and directed the FSM be placed on the TDRL with reexamination in May 2004.  

9.  On 14 April 2003, the applicant was formally counseled regarding the PEB’s findings and recommendations.  Specifically, she was counseled and agreed with the findings and recommendations in the case of the FSM's MEB and addendum, concerning the FSM's medical condition, and that his case would be forwarded to a PEB for adjudication.  She was also counseled and agreed with the findings and recommendations of the PEB concerning the FSM's medical condition that he would be placed on the TDRL with a 100 percent rating.  On behalf of the FSM, the applicant concurred with the PEB’s findings and recommendations and waived a formal hearing of the FSM’s case.

10.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Orders Number 108-0208, dated 18 April 2003, show the FSM was released from assignment because of physical disability and was placed on the TDRL at 1437 hours,  Eastern Standard Time (EST), on 14 April 2003.  

11.  The DD Form 214 he was issued at the time shows the FSM was honorably retired on 14 April 2003, in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of temporary disability.  This form also shows the FSM completed 13 years, 5 months, and 29 days of creditable military service.

12.  At 1012 hours (EST), on 15 April 2003, the FSM died. 

13.  On 30 August 2006, by memorandum, Army Human Resources Command (HRC), Alexandria, Virginia (VA), notified the applicant that she qualified for the increased death gratuity as part of the National Defense Authorization Act (NADA) that went into law in January 2006.  One of the provisions of the Act increased the amount of death gratuity paid to the beneficiary of all deceased service members who died on active duty from 7 October 2001.  The bill includes Soldiers who were retired by being placed on the TDRL.  The amount of death gratuity was increased to $100,000.00.  

14.  On 7 September 2006, the applicant contacted a Member of Congress requesting assistance with payment of the increased SGLI from $250,000.00 to $400,000.00 based on her eligibility for the increased death gratuity benefit.

15.  On 20 October 2006, the applicant received an additional $88.000.00 death gratuity for a total of $100,000.00 through electronic funds transfer.  

16.  On 8 November 2006, by memorandum through the applicant’s Member of Congress, the applicant was notified by the HRC-Alexandria, VA, Casualty and Mortuary Affairs Office, that under Title 10, U.S. Code, section 1476(a)(1), the applicant was eligible for the enhanced death gratuity of $100,000.00, if the death occurs up to 120 days after separation or retirement.  Furthermore, the 2006 NADA amended the SGLI from $250,000.00 to a total of $400,000.00 and specifically stated that the retroactive payment of the additional $150,000.00 is for active duty deaths only.

17.  Department of Defense (DOD) benefits for survivors of deceased members of the armed forces vary significantly in purpose and structure.  Benefits such as the death gratuity provide immediate cash payments to assist these survivors in meeting their financial needs during the period immediately following a member’s death.  Similarly, the SGLI provides the life insurance policy value in a lump sum payment following the service member’s death.  Other benefits such as the Veteran’s Administration Dependency and Indemnity Compensation (DIC) and the Survivor Benefit Plan (SBP), are designed to provide long-term monthly income.  Additional death benefits provided by the DOD for survivors and dependents include housing assistance, health care, commissary and exchange benefits, educational assistance, and burial, funeral, and related benefits.  Survivors may also receive death benefits from Social Security.

18.  The Death Gratuity is a tax-free, lump sum, originally $12,000.00, paid by DOD in the event of a death while the member is serving on active duty (including certain members of the Reserve components during training).  It can go to one of various “eligible survivors” as described in law.  The designated survivor of virtually all deceased DOD military personnel receives this gratuity immediately.  In Fiscal Year (FY) 2004, the death gratuity statute was amended to provide that the gratuity be adjusted upward by the same amount as any increase in military basic pay.  As part of what was formally called the Death Benefits Enhancement, the death gratuity was increased to $100,000.00 in a case of death resulting from wounds, injuries or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001.  This increase in benefits was extended for FY2006 NDAA and was ultimately made permanent.   Section 1523 of the House version of the FY2006 NDAA would make the increased death gratuity permanent as of
1 October 2005.

19.  The purpose of the SGLI is to make life insurance protection available to members of the uniformed services at a reasonable cost.  All members of the uniformed services are automatically insured for the maximum coverage under SGLI.  The maximum coverage has increased through time; it was $250,000.00 
in 2003.  On 1 September 2005, the SGLI was increased to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001 and terminated on September 30, 2005.  Again, as noted above, the FY2006 NDAA made the change permanent. 

20.  The purpose of the Housing Allowance is to provide a cash allowance to military personnel not provided with government quarters adequate for themselves and their dependents to enable such personnel to obtain civilian housing as a substitute.  Family members of a military member who dies in the line of duty are allowed 180 days’ free occupancy of Government quarters or 180 days of Basic Allowance for Housing (BAH) if they live in civilian housing.  BAH varies in accordance with whether military personnel have dependents or are single.  It is based on annual surveys of housing costs in several hundred metropolitan areas around the United States.

21.  The purpose of Health Care is to make medical care available to members of the uniformed services and their dependents in order to help ensure availability of physically acceptable and experienced personnel in time of national emergency; to provide incentives for armed forces personnel in time of national emergency; to provide incentives for armed forces personnel to undertake military service and remain in that service for a full career, and to provide military physicians and dentists exposure to the total spectrum of demographically diverse morbidity necessary to support professional training programs and ensure professional satisfaction for a medical service career.  Un-remarried surviving spouses and minor children of deceased military personnel remain eligible to receive military health care benefits subject to certain limitations.  As the DOD website on military health care benefits states, “[s]urviving family members of deceased active duty service members remain eligible for TRICARE benefits at the active duty dependent rates for a three-year period.  At the end of the three-year period, eligibility continues, but at the retiree dependent rates.  Surviving spouses remain eligible for benefits throughout their lifetime if they do not remarry.  Surviving unmarried dependents remain eligible for benefits until the age of 21 or until the age of 23 if they are a full-time student.

22.  The National Defense Authorization Act (NDAA) for Fiscal Year 2006 (Public Law 109-163, enacted 6 January 2006) increased the death gratuity to $100,000.00 for all deaths retroactive to 7 October 2001.  It also provided $150,000 additional SGLI for any active duty death between 7 October 2001 and 11 May 2005.
DISCUSSION AND CONCLUSIONS:

1.  The applicant wants to correct the FSM's record to show he was on active duty at the time of his death in order to obtain the additional retroactive SGLI payment of $150,000.00 and receive reimbursement for unused housing and incurred health care expenses.  

2.  The evidence of record shows that the FSM's medical retirement process was conducted in accordance with the law applicable at the time and he was properly and equitably retired in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized the applicant's rights.  

3.  The original intent of the Army officials counseling and advising the applicant was to maximize whatever military benefits might assist her and her children after the FSM's untimely death.  There was no way they could have known about the changes that were to be made to the relevant laws within just a few years of the FSM's death.  

4.  As soon as DOD implemented the changes in the law under the Fiscal Year 2006 NDAA, the applicant was promptly notified of the changes in gratuity payment from $12,000.00 to $100,000.00; she applied for and received the retroactive increased death gratuity of $88,000.00.  However, she did not qualify for the retroactive $150,000 SGLI increase because her husband was no longer on active duty at the time of his death.  As such, she now seeks to undo her husband's retirement in order to obtain the $150,000.00 in retroactive increased SGLI.

5.  The law states that a Soldier must have been on active duty for him to secure the additional $150,000.00 in SGLI benefits.  She was entitled to and received the $250,000.00 SGLI because under that law it could be collected on retirees who died 120 days following retirement.  However, the law requires a Soldier be on active duty at the time of death in order for the survivor to receive the additional $150,000.00 SGLI.  Furthermore, the same law requires a Soldier be on active duty at the time of death for the survivor to be entitled to the housing and health care benefits.

6.  While the difficulties the applicant encountered prior to, during, and subsequent to the FSM’s untimely death are regrettable, in order to justify correction of a military record, the applicant must show, or it must otherwise 
satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, regrettably, the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080005338



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
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