IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090006736 


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 reconsideration of her previous request to have the records of her spouse, a deceased former service member (FSM), corrected to show that he died on active duty and not while on the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that Public Law 107-107, which was passed in December 2001, but retroactive to 11 September 2001, effectively negated the need for imminent death processing by providing survivor benefits via the SBP (Survivor Benefit Program) to family members of Soldiers who died on active duty but had less than 20 years of active service.  The applicant also provides additional information in the form of memoranda, information papers, and various implementing procedures from military organizations following the passage of Public Law 107-107 which she state supports her argument that imminent death processing was not necessary.  

3.  The applicant states this new evidence shows that Army officials who counseled and advised her were not working in accordance with the regulations in effect at the time of her spouse’s death.  She states that the error has adversely affected the military benefits that were awarded.

4.  The applicant provides copies of multiple documents dated between 1 May 2002 and February 2006 which outline the changes in laws associated with payment of benefits to survivors of military members who died on active duty.  These documents included information papers and a copy of the January 2004 
directive terminating imminent death processing within the Army.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005338 on 8 May 2008.

2.  A further review of available documents notes the FSM was placed on the TDRL on 14 April 2003 and died on 15 April 2003 from the “result of Hodgkin’s Disease.”  The DD Form 1300 (Report of Casualty) indicates the FSM's "duty status" at the time of death on 15 April 2003 was "Temporary Disability Retired List 100% - 14 April 2003."  That same form indicates the FSM was survived by his spouse and one dependent stepchild.

3.  Department of Defense Instruction (DODI) 1332.38, paragraph E3.P1.6.4, in effect at the time, stated that "when competent medical authority determines that a Service member's death is expected within 72 hours, the member may be referred expeditiously into the Disability Evaluation System.  To protect the interests of the Government and the Service member, disposition shall be 
placement on the TDRL, provided all requirements under statute, law, and regulation are met.  In no case shall a Service member be retired after his or her death or before completion of a required line of duty determination.  Determination of death shall be made under the laws of the state where the member is assigned or under military medical standards when the member is outside the United States."

4.  Under the normal imminent death processing procedures established by the U.S. Army Physical Disability Agency (USAPDA), expeditious processing was not warranted based solely on the diagnosis of a terminal illness or the risks associated with surgery.  Expeditious processing was warranted only when the attending physician made the prognosis that a Soldier's death was expected within 72 hours.  In such cases, in simplified terms, the attending physician completed and signed the Standard Form (SF) 502 (Narrative Summary) and included the statement that death was expected within 72 hours.  The Deputy Commander of Clinical Services or his designated representative ensured that the medical evaluation board (MEB) was completed and approved.  The physical evaluation board liaison officer (PEBLO) provided information to the PEB to complete certain items on the DA Form 199 (Physical Evaluation Board Proceedings).  The PEB adjudicated the case and ultimately rendered findings and recommendation(s) pertaining to the Soldier's medical conditions and disposition.  Once the PEBLO received the results of the PEB, either the Soldier or the next-of-kin's concurrence was obtained regarding the findings and 
recommendation(s) of the PEB.  If the Soldier was deemed incompetent and the next-of-kin could not be located, the medical treatment facility commander could make an election on behalf of the Soldier.

5.  Originally, when death was imminent, retirement for physical disability provided greater benefits than if death occurred on active duty.  In particular, survivors of Soldiers who died on active duty were not entitled to benefits under the Survivor Benefit Plan (SBP) unless the Soldier had at least 20 years of federal service.  In the applicant’s case, she was permitted to elect SBP entitlements for her children which she would not have been permitted to elect under SBP laws in effect at the time.

6.  The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2002 (Public Law 107-107, dated 28 December 2001, and codified at Title 10, U.S. Code, section 1448(d)), authorized survivor benefits for a surviving spouse of any member who died in the line of duty while on active duty.  In the event the Service member had a surviving spouse and surviving children, this change only allowed the surviving spouse to receive SBP payments that were offset by Dependency and Indemnity Compensation, rather than allowing the SBP to pass to the children.  Public Law 107-107 became effective retroactive to 10 September 2001.

7.  The NDAA for FY 2004 (Public Law 108-136, dated 24 November 2003, amending Title 10, U.S. Code, section 1448(d)), rectified this issue by authorizing the "Secretary concerned in consultation with the surviving spouse" to determine 
whether the Service member's surviving children should receive SBP instead of the surviving spouse.  Public Law 108-136 became effective for Soldiers who 
died on or after the enactment of the NDAA for FY 2004 on 24 November 2003.  After this change, in January 2004 imminent death processing was discontinued.

8.  Subsequent to the discontinuance of imminent death processing, entitlement to additional monetary benefits for survivors of Soldiers who died in an active duty status continued to evolve.

9.  Death Gratuity is a tax-free, lump sum payment paid by Department of Defense in the event of a death while the member is serving on active duty (including certain members of the Reserve components during training), or those Soldiers who die within 120 days after release from active duty if the death is due to a service-related disability.  In 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 from $12,000.00 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.  The NDAA for FY 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 without regard to the “combat” provision of the earlier law.

10.  Evidence available to the Board indicates the applicant received an initial death gratuity payment of $12,000.00 and in October 2006, after enactment of the new law, applied for the increased benefit amounting to $88,000.00 bringing her total death gratuity payment in line with the increased authorization provided for by the NDAA for FY 2006.

11.  The Servicemembers’ Group Life Insurance (SGLI) makes 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.  Coverage terminates 120 days after leaving active duty.  The maximum coverage has increased through time; it was $250,000.00 at the time of the FSM’s death in January 2002.  Public Law 109-13, enacted on 11 May 2005 increased the SGLI 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 was to have terminated on September 30, 2005.  

12.  The NDAA for FY 2006 (Public Law 109-163, enacted 6 January 2006) increased the SGLI to $400,000.00 and removed the “combat” stipulations.  It also provided for a $150,000.00 SGLI death gratuity payment to any service member who died on active duty between 7 October 2001 and 11 May 2005 which effectively equalized the benefits for most Soldiers who died on active duty whether death was related to combat actions or not.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided for Department of the Army to defer the disposition of a Soldier and continue him or her on active duty (COAD) under certain circumstances.  The regulation specifically prohibited the COAD of a Soldier solely to increase benefits but did permit COAD when “retention is justified as being of value to the Army."


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant maintains that imminent death processing was no longer necessary at the time of her spouse’s death in April 2003 because of the passage of Public Law 107-107 which permitted payment of SBP benefits to the spouse of a Soldier who died on active duty regardless of the number of years of military service, the ability to transfer that benefit to surviving children did not occur until the passage of Public Law 108-136 on 24 November 2003.  Hence the military continued to process imminent death cases after the passage of Public Law 107-107 in order to provide better financial benefits to surviving family members.

2.  The deceased FSM's medical retirement process was conducted in accordance with the laws applicable at the time and the FSM was properly and equitably retired in accordance with the regulations in effect at the time.  Given the laws in effect at the time, the FSM was retired for the applicant's personal financial gain.

3.  However, while the Board finds no legal error in the FSM's case, clearly the original intent of Army officials was to maximize whatever military benefits might assist her and her child after the FSM's untimely death.

4.  The applicant was entitled to and received the $250,000.00 SGLI because under the law it could be collected on retirees who died within 120 days following retirement.  However, with the enactment of the NDAA for FY 2006, had the FSM died in an active duty status, the applicant would not only have been entitled to the $250,000.00 but would also now be eligible for the additional $150,000.00 SGLI death gratuity payment.

5.  While there was no way that Army officials 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, based on equitable considerations and in keeping with 
the original intent of maximizing the applicant's benefits, the deceased FSM's record should be corrected to show that he was on active duty at the time of his death on 15 April 2003. 

6.  Although the FSM may not have met regulatory requirements for COAD under the provisions of Army Regulation 635-40, as an exception to the regulatory provisions and as a matter of equity, correcting the FSM’s DD Form 199 to show that he was approved for “Continued on Active Duty (COAD)” would negate the requirement to void the properly executed imminent death action and place the deceased FSM in an active duty status at the time of his death.

BOARD VOTE:

____X___  ____X___  ___X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080005338, dated 8 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting the FSM's DA Form 199 to show that he was approved for "Continued on Active Duty (COAD)" in accordance with Army Regulation 635-40;

	b.  voiding any orders issued by Department of the Army placing the FSM on the Temporary Disability Retired List;

	c.  correcting the DD Form 1300 (Report of Casualty), Item 5g (Duty Status) to read "Active Duty;" and

	d.  voiding any DD Forms 214 (Certificate of Release or Discharge from Active Duty) which may have been previously issued as a result of the FSM's placement on the Temporary Disability Retired List.

2.  The Board extends its deepest sympathy to the applicant and her family and appreciates the sacrifices made by the FSM in service to our Nation.  The applicant and her family should be justifiably proud of her spouse’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)                                         AR20090006736



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ABCMR Record of Proceedings (cont)                                         AR20090006736



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