IN THE CASE OF:	 

		BOARD DATE:	    4 September 2012

		DOCKET NUMBER:  AR20120002754 


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, the widow of a deceased former service member (FSM), requests correction of the FSM's records to show he was on active duty at the time of death and reinstatement of the Survivor Benefit Plan (SBP) annuity for the FSM's two children.

2.  The applicant states the FSM died on 21 February 2010.

	a.  On 16 March 2010, the Army issued a Report of Casualty indicating that casualty information (category) was "pending."  She also received documentation that the FSM died while on active duty.

	b.  On 30 November 2010, she was notified that a Line of Duty Investigation (LODI) determined the FSM's death on 21 February 2010 was "In Line of Duty (ILOD)."

	c.  The Defense Finance and Accounting Service (DFAS) then notified her that the SBP annuity payments she was receiving on behalf of her two children were established in error and the annuity payments were stopped on 1 February 2012.

	d.  She states the FSM was on active duty at the time of death, the LODI is inaccurate with respect to his duty status, and the SBP annuity should be reinstated.

3.  The applicant provides copies of the FSM's initial Report of Casualty, a Transcript of Military Record, LODI documents, and two DFAS letters.

CONSIDERATION OF EVIDENCE:

1.  The FSM had prior honorable enlisted service in the U.S. Air Force from
22 August 1982 through 23 August 1990.

2.  A DARP Form 249 (Chronological Statement of Retirement Points), dated
13 January 1991, shows the FSM was credited with 2 years, 11 months, and
20 days of qualifying service for retirement and 8 years, 4 months, and 19 days for longevity pay purposes.

3.  The FSM had a break in service from 24 August 1990 through 12 April 2006.

4.  The FSM enlisted in the Army National Guard of the United States and Indiana Army National Guard (INARNG) on 13 April 2006 for a period of 6 years.

5.  An Indiana State Department of Health, Certificate of Death, issued on
27 April 2010, shows the FSM died on 21 February 2010 of natural causes as a result of Acute Myocardial Infarct and Hypertensive Cardiovascular Disease.
It also shows the applicant is listed as the FSM's surviving spouse.

6.  A DD Form 1300 (Report of Casualty) shows the FSM died in Indianapolis, IN on 21 February 2010.  It also shows in: 

* item 1 (Report Type) - "Final"
* item 2 (Date Prepared) - 27 May 2010
* item 4 (Casualty Information):

* block c (Category) - "Illness"
* block f (Circumstances) - "Illness:  Acute Myocardial Infarct, Hypertensive Cardiovascular Disease, per Certificate of Death"
* block g (Duty Status) - "Inactive Duty for Training:  20 February 2010 - 21 February 2010"

* item 7 (Interested Persons/Remarks):

* Information pertaining to the applicant and the FSM's daughters
* "Changes were made to items 1, 2, 3h (Organization), 4c, and 4f"
* "This replaces Initial Report, dated 16 March 2010"



7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 14 June 2010, shows the FSM died in Indianapolis, IN on 21 February 2010.

a. It also shows in: 

* item 22 (Individual Was On) - "Inactive Duty Training"
* item 23 (Hour and Date of Training) - Began:  0700 hours, 20 February 2010 and Ended:  1600 hours, 21 February 2010
* item 31 (Formal Line of Duty Investigation Required) - "Yes"
* item 32 (Injury is Considered To Have Been Incurred in Line of Duty) -"Yes"
		
	b.  The unit commander approved the findings on 14 June 2010.

8.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 6 October 2010, shows the FSM died in Indianapolis, IN on
21 February 2010.

	a.  It also shows in: 

* item 3 (Status), block c (Inactive Duty Training) - an "X" and "IDT"
* item 3, block e (Duration) - Start:  0700 hours, 20 February 2010 and Finish:  1600 hours, 21 February 2010
* item 11 (Findings) – an "X" indicating "In Line of Duty"

	b.  The Chief, National Guard Bureau, approved the findings on 6 October 2010.

9.  In support of her application, the applicant provides the following documents:

	a.  DD Form 1300 that shows the FSM died in Indianapolis, IN on
21 February 2010.  It also shows in: 

* item 1 - "Initial"
* item 2 - 16 March 2010
* item 4:

* block c - "Pending"
* block f - "Determination pending"
* block g - "Inactive Duty for Training:  20 February 2010 -
21 February 2010"

* item 7 (Interested Persons/Remarks) - Information pertaining to the applicant

	b.  An AHRC Form 1569 (Transcript of Military Record), undated, and without any indication of authentication shows in:

* the block for "Type of Discharge or Separation" the entry "Died on Active Duty"
* item 7 (Date of Discharge or Separation) - 21 February 2010
* item 14 (Date of Entry into Active Service) - 20 February 2010
* item 18 (Reason and Authority for Separation) - "Died on Active Duty"

	c.  U.S. Army Human Resources Command (USA HRC), Fort Knox, KY, memorandum, dated 30 November 2010, showing the Chief of Staff, USA HRC, forwarded the applicant four documents related to the FSM's LODI in response to her Freedom of Information Act (FOIA) request.  In addition to the DA Form 2173, dated 14 June 2010, and DD Form 261, dated 6 October 2010, he provided copies of:

	 	(1)  Headquarters, 76th Special Troops Battalion, Indianapolis, IN, memorandum, dated 1 July 2010, that shows the INARNG Investigating Officer found the FSM died of natural causes, "the (FSM) was in IDT status," and that his death was "In Line of Duty."

	 	(2)  USA HRC, Fort Knox, KY, memorandum, dated 20 October 2010, subject:  Line of Duty Determination, that shows the Chief, Casualty and Mortuary Affairs Branch, determined the FSM's death, on 21 February 2010, was a result of Acute Myocardial Infarction, "In Line of Duty."

	d.  Two letters from the Director, DFAS Retired and Annuity Pay, to the applicant that notified her of a significant error in the annuity payments she was receiving on behalf of her two children under the SBP.  

	 	(1)  The director indicated that the administrative documents used to establish the annuity payments did not clearly reflect that the FSM "was on Inactive Duty Training (IDT or 'drill') at the time of death."  Consequently, the annuity payments were mistakenly established based on the presumption of an "Active Duty" death.  As a result, the children's payments were stopped on
1 February 2012.

	 	(2)  Since the applicant received the erroneous payments in good faith on behalf of the children, DFAS waived any and all responsibility she might have to repay the excess payments already received.
    	(3)  The applicant was informed that, as a surviving spouse, she may be eligible to receive an annuity and she was provided the form to complete.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

11.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted
30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  

12.  Title 10, U.S. Code, section 1448 (Application of Plan) shows in:

   a.  subparagraph d (Coverage for survivors of members who die on active duty), states (in pertinent part) that in the case of a member who dies in line of duty while on active duty and for whom there is a surviving spouse eligible for an annuity, the Secretary may pay an annuity under this subchapter to the member's dependent children under section 1450(a)(3) of this title, instead of paying an annuity to the surviving spouse, if the Secretary concerned, in consultation with the surviving spouse, determines it appropriate to provide an annuity for the dependent children instead of an annuity for the surviving spouse;

   b.  subparagraph f (Coverage of survivors of persons dying when or before eligible to elect reserve component annuity):

    	(1)  subsection 1 (Surviving spouse annuity), the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is a member of a reserve component and dies from an injury or illness incurred or aggravated in the line of duty during inactive duty training; and

    	(2)  subsection 2 (Dependent child annuity), the Secretary concerned shall pay an annuity under this subchapter to the dependent child of a person, if there is no surviving spouse or if the person's surviving spouse subsequently dies.

13.  Department of Defense, Financial Management Regulation 7000.14-R, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 42 (SBP - Application of the Plan):
   
   a.  paragraph 4201 (Purpose), subparagraph 420102, shows that the plan includes survivor benefits for the surviving spouse, dependent child, or former spouse of a member who dies on active duty or a Reserve Component annuity on behalf of a member who dies before notification of retirement eligibility, or during the 90-day period following notification or retirement eligibility if member had not made an election or, under certain circumstances, if the member dies in the line of duty during inactive duty training; and

   b.   paragraph 4202 (Specialized terms) describes in subparagraph 420223 (Reserve Component annuity) as an annuity provided by virtue of eligibility of a person who would be eligible for Reserve Component retired pay but for the fact that they are under 60 years of age or is a member of a Reserve Component and dies in the line of duty during inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected to show he was on active duty at the time of death and as a result reinstatement of the SBP annuity for the FSM's two children.

2.  The evidence of record fails to show the FSM was credited with 20 or more years of qualifying service for retirement purposes.  Thus, he did not qualify for a Reserve retirement or RCSBP at the time of death.

3.  The evidence of record shows:

   a.  a Transcript of Military Record shows the FSM "Died on Active Duty" on
21 February 2010; and

	b.  an informal LODI, formal LODI, initial Report of Casualty, and final Report of Casualty all show the FSM was in an "Inactive (emphasis added) Duty Training" status at the time of death.

   c.  There is no evidence the FSM was in an "Active Duty for Training" or "Active Duty Other Than for Training" status at the time of death.  Moreover, "Inactive Duty Training" is not categorized as "Active Duty."

	d.  Thus, based on a preponderance of the evidence, it is concluded that the entry "Died on Active Duty" on the Transcript of Military Record was the result of an administrative error and is incorrect.  Therefore, there is an insufficient basis for changing the FSM's duty status category (i.e., Inactive Duty Training) that is shown on the LODI documents and Reports of Casualty.

4.  The evidence of record shows that documents used by DFAS to establish the SBP annuity payments did not clearly reflect that the FSM was on "Inactive Duty Training" or "drill" at the time of death.  Consequently, the annuity payments were mistakenly established based on the presumption of an "Active Duty" death. However, upon discovery of the error by DFAS, the children's payments were stopped on 1 February 2012.  (It is noted that DFAS waived any and all responsibility the applicant might have to repay the excess payments already received.)

5.  There is no evidence of record, and the applicant fails to provide sufficient evidence to show the FSM was in an "Active Duty" status at the time of death.

6.  Regrettably, in view of all of the foregoing, there is insufficient evidence to grant the applicant's requested relief.

7.  DFAS did inform the applicant that she, as the surviving spouse, might be eligible to receive the SBP annuity and she was provided the form to complete to apply for the annuity.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X___  ___X_____  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.




      _______ _   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)                                         AR20120002754



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ABCMR Record of Proceedings (cont)                                         AR20120002754



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