IN THE CASE OF:
BOARD DATE: 23 July 2009
DOCKET NUMBER: AR20090004203
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 that the records of his son, the former service member (FSM), be corrected to show he remained on active duty until his death.
2. The applicant states his son died of wounds he received while on active duty. The applicant adds that he and his family are eligible for the balance of the Death Gratuity.
3. The applicant provides a DD Form 1300 (Report of Casualty).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted,
has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM's records show that he enlisted in the Regular Army on 22 August 2000, was awarded the military occupational specialty of infantryman, and served in Iraq. On 15 July 2004, the FSM was honorably released from active duty and placed on the Temporary Disability Retired List (TDRL) due to blast injuries to his head which were the result of hostile action. On 19 September 2004, the FSM died of complications from those wounds.
3. Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the members disability is not determined to be of a permanent nature and stable.
4. DoDD 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent.
5. The Human Resources Command Alexandria (HRC-A), Army Casualty website shows that a lump sum gratuitous payment made to eligible beneficiaries when death occurs within 120 days after retiring. There is no death gratuity payment for retirees families when the retiree dies past 120 days of active duty service. The Defense Finance and Accounting Service-Cleveland (DFAS-CL) issues this payment only if the Veterans' Administration (VA) determines death was caused by an illness or injury incurred while the retiree was on active duty.
6. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law.
7. The Department of Veterans Affairs (VA) Servicemembers' and Veterans' Group Life Insurance Handbook states that for eligibility for Servicemans Group Life Insurance (SGLI), for members performing active duty or active duty for training under a call or order that does not specify a period of less than 31 days, coverage is in effect during the period of such duty and for 120 days following
separation or release. For members of the Ready Reserves/Guard who are eligible for full-time coverage under the law, coverage is in effect during the period of such duty or status and for 120 days following separation or release from such duty. For members who are totally disabled at separation or release, coverage is extended for a limited time beyond the 120 days.
DISCUSSION AND CONCLUSIONS:
1. The FSM was placed on the TDRL due to a medical condition which proved to be fatal. While the FSM's disability evaluation system packet is not contained in his records, there can be no doubt that the FSM died from the wounds which resulted in his placement on the TDRL.
2. The applicant has not provided any reason why his son's records should be corrected to show he was retained on active duty. Since the applicant's son died within 120 days of his placement on the TDRL, he was still entitled to SGLI and Death Gratuity. In addition, the applicant's son was eligible to elect SBP, which he could not have elected if he had remained on active duty.
3. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ___X____ ____X__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation. The applicant and all Americans should be justifiably proud of his son's service in arms.
_______ _ X_______ ___
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) AR20090004203
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