IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110010056 


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 her deceased husband, a former service member (FSM), be corrected to show he was on inactive duty training (IDT) at the time of his death and, as a result of that correction, that she be given full death benefits to include death gratuity and reimbursement of funeral expenses.

2.  The applicant defers to counsel for her statement.

3.  The applicant provides a memorandum from counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the FSM’s records be corrected to show he was on IDT at the time of his death and, as a result of that correction, that she be given full death benefits to include death gratuity and reimbursement of funeral expenses.  Counsel also requests that he and the applicant be allowed to address the Board in a formal hearing. 

2.  Counsel states that the FSM was the commander of an Army National Guard (ARNG) unit which was performing a two-day training exercise.  The unit orders for the exercise specified that units were to "stay overnight in field if training objectives are not met on 9 January 10."

3.  On 9 January 2010, the FSM performed duties with his unit and, since his home was approximately 16 miles from the unit, was authorized by his battalion commander to sleep at home that night.  That night he died of cardiomyopathy and dysryhmia.

4.  The applicant was informed by Department of the Army casualty personnel that her husband was considered to be on a duty status at the time of his death because his duty started on Saturday and did not end until late Sunday.  The applicant was then given documents which informed her she would receive a death gratuity and reimbursement for funeral expenses.  Based on these assurances, she incurred significant funeral-related expenses.  The applicant was also promised up to $50,000 in college costs for each child, discounted health and dental insurance coverage, and military family identification cards.

5.  However, two days later it was determined, based on legal review, the FSM was not in a duty status at the time of his death which would authorize mortuary benefits or payment of a death gratuity.

6.  The applicant appealed that decision and was informed that a Soldier who has completed a day of IDT and with the authority of their supervisor returned home for the intervening night is not eligible to receive a death gratuity under Title 10, U.S. Code, Section 1475.

7.  Counsel then goes into a lengthy analysis of the laws that provide for death gratuity and burial expenses, Title 10 U.S. Code, Sections 1475 and 1481.  Essentially, counsel contends that there is nothing in the laws which require a Soldier to actually die while engaged in training activities, and his unit orders explicitly covered sleep and the overnight hours.  The fact that he completed his training objectives and was allowed to sleep at home is of no consequence since where and when the FSM slept on the evening of January 9 and early morning of January 10 was dictated by his unit orders and thus were part of his IDT.  Counsel emphasizes his point by contending that if the FSM violated military law on the night of his death, he would have been subject to military jurisdiction.

8.  Counsel continues by broadly defining IDT and opines that, for the purpose of death gratuity and mortuary expenses, Congress wouldn't have included death while traveling to and from IDT and excluded the night between the days of a weekend drill.

9.  As for burial expenses, counsel adds that the provision of law which stated that Soldiers who are required to be at the duty location overnight or are in the area overnight because they reside outside the commuting distance was removed from the statute 8 years earlier.

10.  Counsel points out that the FSM was a decorated Soldier who served two deployments to Iraq and was preparing for another deployment to Afghanistan when he died.

11.  Counsel provides exhibits which he lists in an index.

CONSIDERATION OF EVIDENCE:

1.  The FSM was commissioned and entered active duty on 19 June 2003.  He was promoted to captain and was honorably released from active duty on 30 April 2007 and transferred to an ARNG unit.  His awards and decorations included the Bronze Star Medal, Army Commendation Medal, Army Achievement Medal, and Global War on Terrorism Expeditionary Medal.

2.  On 9 November 2009, he was assigned as an ARNG unit commander.

3.  FRAGO (Fragmentary Order) 06 to OPORD (Operations Order) 10-01 for the 1st Battalion, 142nd Field Artillery for Training Year 10 provided the training schedule for that unit for 9 and 10 January 2010.  That FRAGO stated that, for     9 January (Saturday), units should "BPT [Be Prepared To] stay overnight in field if training objectives are not met on 9 Jan 10."

4.  A memorandum for record dated 30 September 2010 stated that the FSM was given verbal permission to sleep at his home the evening of 9 January and the morning of 10 January.

5.  The FSM returned home to sleep on 9 January 2010.  On the morning of 10 January 2011, the applicant discovered him dead in bed.  He died of cardiomyopathy and dysryhmia.

6.  An email from the casualty area office on 11 January 2010 stated that since the FSM died between days of IDT, they were treating him as having died on active duty.  Accordingly, the applicant was assigned a casualty assistance officer on 11 January 2010.

7.  On 12 January 2010, the applicant was informed in writing she would receive $100,000 death gratuity and reimbursement of funeral expenses up to a total of $8,800.

8.  On 14 January 2010, the Human Resources Command (HRC) rendered a legal opinion which concluded that the FSM was not in a duty status when he died and, therefore, his death did not establish entitlement to mortuary benefits or death gratuity.  The legal opinion was based, in part, on facts which are not in the record before the Board.

9.  Based on that legal ruling, the applicant's death gratuity and mortuary benefits were terminated.  That termination was unsuccessfully appealed by the Fort Sill Casualty Assistance Center.  

10.  On 22 April 2010, the Secretary of the Army responded to the applicant's Senator on behalf of the Secretary of Defense.  The Secretary of the Army stated that the Army has no authority to pay a death gratuity or funeral expenses because of the FSM's status when he died.  Under the provisions of Title 10, U.S. Code, Section 1481(a)(2)(d), the Army may only pay for funeral and mortuary costs for Reserve Soldiers who die while remaining overnight at or in the vicinity of the site of the IDT.  Soldiers who have their supervisor's permission to spend the intervening drill night at their residence, whether or not in the vicinity of the site of the IDT, are not covered by this section.  The Army has consistently interpreted the word "remaining" in this statute as meaning Soldiers who are required to be at the duty location overnight or are in the area overnight because they reside outside the commuting distance.

11.  On 11 August 2011, The Adjutant General (TAG), Arkansas ARNG, sent a memorandum to the Chief, National Guard Bureau (CNGB).  The TAG opines that Title 10, U.S. Code, provides death benefits to the families of Soldiers who remain overnight at or in the vicinity of the IDT between drill days.  The TAG adds that in the event that this Board finds the FSM's death was not incurred in line of duty, he requests the promises of the death gratuity and mortuary benefits be honored under theories of contract law and detrimental reliance.

12.  On 30 August 2011, the CNGB sent a letter to the Board.  While the CNGB acknowledges that the applicant was not entitled to the death gratuity, she relied on information provided to her by credible representatives of the Department.  The applicant was told she would receive $100,000 death gratuity, reimbursement of travel costs of her immediate family to the FSM's funeral, and a myriad of additional death benefits.  The CNGB asks that the applicant be given the $100,000 death gratuity.

13.  In the processing of this case an advisory opinion was provided by the Deputy Chief of Staff, G-1 who stated that the FSM was deemed as not serving on active duty or being in an inactive duty status when he died.  Without a different duty status determination, the Army is unable to approve payment of the death gratuity or reimbursement for funeral expenses.  The applicant was provided a copy of the advisory opinion and was given the opportunity to respond.  
14.  On 16 September 2011, the applicant's counsel responded to the advisory opinion (he apparently also responded to correspondence other than the advisory opinion).  In that response counsel states that the opinions do not support the Army's decision to deny the applicant death benefits; rather, they demonstrate that the FSM was on IDT when he died.  Counsel agreed with the opinion that "conceded" the applicant is entitled to burial expenses, and reiterates his prior statement that the provision of law which stated Soldiers who are required to be at the duty location overnight or are in the area overnight because they reside outside the commuting distance was removed from the statute 8 years earlier.

15.  Counsel contends that since the applicant was authorized to go home for the night, he was not allowed to go elsewhere, which underscores he was subject to military jurisdiction during the entire 2-day IDT period.  Counsel then cites various statutes and legal precedent cases and concludes that the since the FSM was on IDT during the entire weekend, the applicant is entitled to the full range of death benefits provided by law.

16.  Title 10, U.S. Code, Section 1481 (Recovery, care, and disposition of remains: decedents), subsection 1481(a) states that the Secretary concerned may provide for the recovery, care, and disposition of the remains of the following persons.  The following subsections of subsection 1481(a) state:

   (1) Any Regular of an armed force under his jurisdiction who dies while on active duty.

   (2) A member of a reserve component of an armed force who dies while - 

   (A) on active duty;

   (B) performing IDT;

   (C) performing authorized travel directly to or from active duty or IDT;

   (D) remaining overnight immediately before the commencement of IDT, or remaining overnight, between successive periods of IDT, at or in the vicinity of the site of the IDT;

   (E) hospitalized or undergoing treatment for an injury, illness, or disease incurred or aggravated while on active duty or performing IDT; or
   
   (F) either - 

   (i) serving on funeral honors duty under section 12503 of  this title or section 115 of title 32;

   (ii) traveling directly to or from the place at which the member is to so serve; or

   (iii) remaining overnight at or in the vicinity of that place before so serving, if the place is outside reasonable commuting distance from the member's residence.

17.  Title 10, Section 1475, Death gratuity: death of members on active duty or inactive duty training and of certain other persons, states that:

   (a) Except as provided in section 1480 of this title, the Secretary concerned shall have a death gratuity paid to or for the survivor prescribed by section 1477 of this title, immediately upon receiving official notification of the death of - 

   (1) a member of an armed force under his jurisdiction who dies while on active duty or while performing authorized travel to or from active duty;

   (2) a Reserve of an armed force who dies while on inactive duty training (other than work or study in connection with a correspondence course of an armed force or attendance, in an inactive status, at an educational institution under the sponsorship of an armed force or the Public Health Service);
   
   (3) any Reserve of an armed force who, when authorized or required by an authority designated by the Secretary, assumed an obligation to perform active duty for training, or inactive duty training (other than work or study in connection with a correspondence course of an armed force or attendance, in an inactive status, at an educational institution, under the sponsorship of an armed force or the Public Health Service), and who dies while traveling directly to or from that active duty for training or inactive duty training.

18.  The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.  The Comptroller General has also ruled that orders may not be changed solely to make a member benefit from a monetary compensation.  

19.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:  

1.  The issues to be decided by the Board are whether:

   a.   the FSM was on an IDT at the time of his death, and;
   
   b.  the applicant is entitled to burial benefits based on the FSM remaining overnight, between successive periods of IDT, at or in the vicinity of the site of the IDT.

2.  Reservists and Guardsmen not performing active duty are only on a duty status when they are performing IDT or traveling to and from IDT.  Contrary to counsel's assertion, the FSM was free to go wherever he chose after he returned home and, if the FSM violated military law on the night of his death, he would not have been subject to military jurisdiction.  He was not on a duty status after he entered the door of his house.  Since the FSM was not under military control between drill periods and, therefore, not in a duty status, the applicant is not entitled to a death gratuity which is reserved for Soldiers who die in a duty status.

3.  As for burial benefits, as expressed by the Secretary of the Army in his letter dated 22 April 2010, the Army has consistently interpreted the word "remaining" in this statute as meaning Soldiers who are required to be at the duty location overnight or are in the area overnight because they reside outside the commuting distance.  The Secretary's interpretation of the governing statute is based on solid footing.  When somebody "remains," they do not return.  Therefore, when a Soldier is remaining in the vicinity of where the IDT is being conducted, the Soldier is not returning to the location from which they started.  In the case of a Guardsman on IDT, that would normally imply that Soldier's home.  It would appear that the reference to a Guardsman's distance to his or her residence, as expressed in the superseded statute, was dropped from the law to provide burial benefits to Guardsmen who did not reside outside the specified distance yet were required to remain in the vicinity of the IDT site due to operational necessities.  

4.  In this case the FSM had completed his tasks and had gone home for the night.  His military (travel) status ended when he entered his door at home and would have resumed the following morning when he exited the door to return to his unit.  If the FSM had not completed his tasks and had remained with his unit 

overnight as provided for in his unit orders, he would have been in a duty status and the applicant would have been properly provided a death gratuity and mortuary benefits.

5.  As such, the FSM was not in a duty status when he died and, therefore, the applicant is not entitled to mortuary benefits.

6.  The Board does not have the authority to simply pay the amount the applicant was promised in death gratuity and mortuary expenses.  The Board corrects military records and, where applicable, the money that becomes due as a result of a correction will be paid by the Defense Finance and Accounting Service (DFAS).

7.  The sole error in this case is the fact that the applicant was misinformed that she would be entitled to a death gratuity and mortuary benefits.  However, that error was discovered within two days.  This misinformation is certainly unfortunate, but does not establish a basis for granting the applicant's request.

8.  It is certainly regrettable that, based on assurances by Department of the Army employees, the applicant incurred funeral-related expenses.  It is also regrettable that she was told she would receive up to $50,000 in college costs for each child, discounted health and dental insurance coverage, and military family identification cards.  

9.  The FSM's distinguished military career is certainly notable.  However, his military accomplishments have no bearing on the laws which dictate the outcome of this case.

10.  Since the two issues involved in the resolution of this case are not subject to interpretation, there is no basis to grant the applicant a formal hearing.

BOARD VOTE:

____X __   ___X ___   ___X  __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board finds the record provides sufficient evidence that the applicant detrimentally relied upon the incorrect assertions of Army officials at a time when she was most vulnerable and required to make critical, and irrevocable, financial decisions.  As she laid her husband to rest, she made funeral arrangements and family travel plans in anticipation of receipt of mortuary benefits and a death gratuity that she might not have otherwise made.  The fact that several days passed before the Army alerted her to its mistake likely also caused her to make further plans for the funds she believed she would receive.  This detrimental reliance tips the scales of equity in favor of the applicant.

2.  After reviewing the particular facts circumstances of this case (and the progress of the field training exercise), the Board finds that the FSM was not released from the UTA and he was on inactive duty training at the time of his death.

3.  Therefore, the Board recommends correction of all Army records to reflect the FSM was serving in an inactive duty for training status at the time of his death and is therefore entitled to all benefits that status entails.




      _______ _ _/s/_   ___   ___
               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)                                         AR20110010056



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ABCMR Record of Proceedings (cont)                                         AR20110010056



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