IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009717 


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 changes in the law negated the requirement to process her spouse under the Imminent Death Processing procedures.  She also maintains there is sufficient evidence to show that he was in fact deceased upon arrival at the medical treatment facility.  She states that because her spouse was already deceased expeditious processing via imminent death procedures were precluded.  She states that he was incorrectly retired after his death, that she was not in an emotionally stable state at the time she was asked to make decisions regarding imminent death processing, and that at the time of her spouse’s death imminent death processing was obsolete and no longer necessary to protect the interests of her and her family.

3.  The applicant provides copies of her invitational travel orders showing that she was identified as a family member of a deceased “active duty” Soldier, a copy of her spouse’s autopsy report, a copy of the procedures for expeditious processing of imminent death cases, a copy of her spouse’s casualty report, and a copy of Public Law 109-163 which describes enhanced death benefits for survivors of Soldiers who died on active duty between 7 October 2001 and 
11 May 2005.


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 AR20080005352 on 15 May 2008.

2.  The applicant’s contentions and the documents that she provided are considered new evidence that requires reconsideration.  

3.  A further review of available documents indicates the FSM was placed on the TDRL at 1222 hours, Eastern Standard Time, on 7 December 2003.  His time of death, according to his autopsy report, was recorded as 1235 hours on 
7 December 2003.

4.  The DD Form 1300 (Report of Casualty) indicates the deceased FSM's "duty status" at the time of death on 7 December 2003 was "Temporary Disability Retired List 100% - 7 Dec 2003."  This same form indicates the FSM was survived by his spouse and two dependent step-children.
	
5.  According to a statement contained in the applicant’s original consideration of her case, she was counseled on 9 December 2003 by the Fort Benning Survivor Benefit Counselor regarding options associated with the SBP (Survivor Benefit Plan).  The counselor recommended the applicant elect, on behalf of her spouse, the “children only” option of the SBP as that would provide her the maximum financial benefit for her family.

6.  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."

7.  Under the normal imminent death processing procedures established by the Physical Disability Agency, 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 physical evaluation board (PEB) to complete certain items on the DA Form 199 (PEB 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 had 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.

8.  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.

9.  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.

10.  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.

11.  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.

12.  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.  

13.  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.

14.  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 December 2003 because of the passage of Public Law 107-107 which permitted payment of SBP benefits to the spouse of 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.  It was not unreasonable to conclude that officials at Fort Benning would have continued to process imminent death cases until they were told to discontinue the process in January 2004, in spite of the fact that Public Law 108-136 had been passed in November 2003.  While one could argue that imminent death processing did in fact become unnecessary on 24 November 2003 with the enactment of Public Law 108-136, clearly officials at Fort Benning were acting in good faith and as such the Board does not find fault with the decision to place the FSM on the TDRL.  The Board notes that no injustice was created by utilizing the imminent death processing procedures in December 2003.  It was not until the passage of the NDAA for FY 2006 that the process became an issue.

3.  While no error was found in the processing of the FSM's case, ultimately the decision to implement imminent death procedures impacted the applicant’s financial benefits and clearly the original intent of Army officials was to maximize whatever military benefits might assist the applicant and her children after the FSM's death.

4.  The applicant was entitled to the $250,000 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 but would also now be eligible for the additional $150,000 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 7 December 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:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080005352, dated 15 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

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

	b.  voiding all 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 Form 214 (Certificate of Release or Discharge from Active Duty) which may have been previously issued as a result placing the FSM on the TDRL.



      _______ _   _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)                                         AR20090009717



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ABCMR Record of Proceedings (cont)                                         AR20090009717



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