IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080005352 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased husband, a former service member (FSM), be corrected to show that he was not retired but was on active duty at the time of his death, thereby entitling her to receive $150,000 in additional Servicemembers' Group Life Insurance (SGLI).  She also requests that she 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.  

2.  The applicant states, in effect, that while stationed at Fort Benning, Georgia, her husband had a seizure while sleeping and he was rushed to the emergency room on 7 December 2003.  Upon her arrival at the hospital, the physician came out and informed her that he was going to medically retire her husband because it was in the best interest of the family for the receipt of certain benefits.  Her husband was placed on the Temporary Disability Retired List (TDRL) on 
7 December 2003 and he was pronounced dead on 7 December 2003.     

3.  The applicant states that the Expeditious Processing of Imminent Death Retirement Policy was in place prior to 28 December 2001 to facilitate medically retiring a Soldier so that the surviving spouse could qualify for the Survivor Benefit Plan (SBP).  She contends that at the time of her husband’s death, Public Law 107-107, section 642 removed the requirement for a Soldier to have 20 years of active duty service, provided the active duty death of the Soldier was found to be in the line of duty.  She states that although the law was changed in December 2001, the Department of Defense (DOD) did not provide implementing instructions regarding imminent death processing until after April 2002.  She points out that paragraph 2e of the Expeditious Processing of Imminent Death Retirement Policy states that the Soldier or next of kin must be counseled regarding retirement.  She claims that she was present but was not counseled by anyone on 7 December 2003.  She states that she was counseled on 
9 December 2003, two days after her husband’s death. 

4.  The applicant also states that there was no need to medically retire her husband under the Imminent Death Policy on 7 December 2003 because the law was changed two years earlier, with an effective date of 28 December 2001.  She contends that the Fort Benning Emergency Medical Services (EMS) Patient Care Report entries are evidence that her husband was dead prior to being placed in a retirement status.  She indicates that the Imminent Death issue was a new term thrown at her and totally confusing.  The impact on her was escalated with the approval of new legislation (Public Law 109-13 and Public Law 109-163) which increased the SGLI from a maximum of $250,000 to $400,000 retroactive to 
7 October 2001.  She claims that in addition to the SGLI legislation, recent changes have also been made to TRICARE Prime transitional eligibility, where there is no cost for children of Soldiers who died on active duty.   

5.  The applicant further states that because her husband was erroneously expeditiously medically retired under procedures and regulations that were obsolete, she is told that she is not eligible to receive the retroactive SGLI payment and other benefits provided by laws that were actually in effect.  In concluding, she states that the facts show that the legislation which was enacted in December 2001 to enhance benefits for surviving spouses essentially eliminated the need for Imminent Death retirements.  She states that Military Treatment Facilities, Retirement Services Offices, and Personnel Commands throughout the Army, for at least two more years, continued to medically retire Soldiers under the Expeditious Processing of Imminent Death Cases policy because of the lack of dissemination of vital information which has been detrimental to the overall “best interest of the family” umbrella.  She claims that it was the Army’s responsibility to ensure that these new changes were disseminated to the lowest level possible.  She requests that her husband’s retirement status be revoked as being retired on 7 December 2003 and that his status at the time of his death be changed to active duty as she would have chosen at the time had she been counseled correctly using the legislation in effect at the time of his death.      

6.  The applicant provides a marriage certificate; a DD Form 93 (Record of Emergency Data); a SGLI Election and Certificate; a Fort Benning EMS Patient Care Report; an extract of Public Law 107-107; an extract on the expeditious processing of imminent death cases; retirement orders; a DD Form 214 (Certificate of Release or Discharge from Active Duty); a death certificate; a DD Form 1300 (Report of Casualty); an autopsy report; a memorandum of counseling; a Department of Veterans Affairs (DVA) Rating Decision; and a DVA Award letter. 

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 31 December 1991 and served as a parachute rigger.  He attained the rank of staff sergeant.

2.  A Fort Benning EMS Patient Care Report, dated 7 December 2003, shows that upon arrival at the FSM’s residence the medical personnel found the FSM in cardiac arrest and he was transported to the emergency room.  This form does not show that the FSM was deceased.    

3.  The FSM’s Medical Evaluation Board and Physical Evaluation Board are not available.

4.  Headquarters, United States Infantry Center Orders 342-2249, dated 
8 December 2003, show the FSM was released from assignment because of physical disability and was placed on the TDRL at 1222 hours, Eastern Standard Time (EST), on 7 December 2003.  

5.  The FSM’s DD Form 214 shows he was honorably retired on 7 December 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 11 years, 
11 months, and 7 days of creditable active service.

6.  At 1235 (EST), on 7 December 2003, the FSM died. 

7.  The applicant provided a memorandum, dated 4 February 2004, from the Survivor Benefit Counselor which states, in pertinent part, that she counseled the applicant on 9 December 2003 on SBP options and other applicable government benefits to include those from the Department of the Army, Department of Veterans Affairs, and the Social Security Administration.  The memorandum also states that the counselor provided forms for use in applying for benefits.     

8.  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 Department of Veterans Affairs 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.

9.  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.  Effective 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).  A special death gratuity of $150,000, retroactive for deaths that occurred on or after 7 October 2001, was payable to survivors of those whose death occurred under the conditions noted. 

10.  One 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.  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.”

DISCUSSION AND CONCLUSIONS:

1.  Records show that on 9 December 2003, two days after the FSM died, the applicant was counseled by the Survivor Benefit counselor on SBP options and other applicable government benefits to include those from the Department of the Army, Department of Veterans Affairs, and the Social Security Administration.    

2.  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.  

3.  Effective 1 September 2005, the law was changed to increase the SGLI to $400,000 for those who die from wounds, injuries, or illnesses that occur in a combat zone or in combat-related activities.  It also states that a Soldier must have been on active duty for him to secure the additional $150,000.00 in SGLI benefits.  An additional $150,000 was payable retroactive to 7 October 2001; however, the FSM did not die from wounds, injuries, or illnesses that occurred 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).  The applicant was entitled to and received the $250,000.00 SGLI in effect at the time because under that law it could be collected on retirees who died 120 days following retirement.    

4.  While the Board sympathizes with the applicant’s circumstances as a result of the FSM’s untimely death, 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

__XX____  __XX___  ___XX___  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.




      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005352



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ABCMR Record of Proceedings (cont)                                         AR20080005352



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