IN THE CASE OF: 

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120006760 


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 Report of Casualty (DD Form 1300) pertaining to her deceased husband, a former service member (FSM), be changed to reflect that his status in block 4g was “Active Duty Training (ADT)” instead of “Inactive Duty for Training (IDT).”  

2.  The applicant states the FSM served as a member of the Utah Army National Guard (UTARNG) for 13 years and he deployed to Afghanistan as an Apache pilot in 2005.  However, on 20 August 2007, while performing a flight training mission his helicopter crashed and he and his co-pilot were killed.  She goes on to state that she was pregnant with her fourth child and was overwhelmed by the fact that she had to raise her children by herself.  She continues by stating that she was relieved when the casualty assistance officer informed her that she was entitled to Survivor Benefit Plan (SBP) benefits either for herself or her children.  She states that she elected SBP for her children in case she elected to remarry, which she did.  However, in 2012 she was notified by the Defense Finance and Accounting Service (DFAS) that an audit of SBP benefits revealed that she had been improperly paid SBP benefits to which she was not entitled because the FSM was in an IDT status and the law did not provide benefits for such a status.  DFAS was not aware that the FSM was in an IDT status when the benefits were authorized.  She further states the loss of the benefits which she has depended on presents an injustice to her children.   

3.  The applicant provides a two-page letter explaining her application, copies of the FSM’s death certificate, Report of Casualty, a notification letter from DFAS, and an executive summary.
CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the UTARNG on 7 June 1994 and was appointed as a warrant officer one aviator on 18 December 2001.  He was promoted to the rank of chief warrant officer two (CW2) on 18 December 2003.  He deployed to Afghanistan from 20040418 to 20050330.

2.  On 20 August 2007, the FSM was performing an Additional Flight Training Period (AFPT) while in an IDT status when his helicopter crashed and he was killed along with another pilot.

3.  On 20 January 2012, a letter was prepared by officials at DFAS which notified the applicant that she (her children) were receiving an SBP annuity that they were not entitled to under the law because the FSM was in an IDT status at the time of his death.  Accordingly, the annuity would stop effective 1 February 2012 and DFAS would waive the requirement to repay the amount of $19,522.49.

4.  An Executive Summary, prepared by the National Guard Bureau (NGB), dated 24 January 2012, indicates that an audit of SBP benefits revealed that SBP benefits were being paid to families of Reservists who died during IDT.  The audit revealed that 95 beneficiaries were affected, 72 were Army, 15 were Air Force, and 8 were Navy.  The payments totaled approximately $3.5 million.  The summary also indicated the law and regulations differ for active duty deaths and IDT deaths.  Accordingly, DFAS approved a waiver of repayments and no family members would have to repay their debt. 

5.  Title 10, U.S. Code, section 1448(d) provides the coverage for survivors who die on active duty.  

   a.  Surviving spouse annuity – Except as provided in paragraph (2)(8), the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a member who dies on active duty after:

       (1)  becoming eligible to receive retired pay;
   
       (2)  qualifying for retired pay except that the member has not applied for or been granted that pay;
   
       (3)  completing 20 years of active service but before the member is eligible to retire as a commissioned officer because the member has not completed 
10 years of active commissioned service.
   
   b.  A member not described in subparagraph (A) who dies in line of duty while on active duty.

6.  Title 10, U.S. Code, section 1448(f) provides, in pertinent part, that the computation of the amount of an annuity under this subsection is computed under section 1451C of this title.  Surviving spouse annuity – The Secretary concerned shall pay an annuity under subparagraph A to the surviving spouse of a person who:
   
   a.   is eligible to provide a Reserve – component annuity and dies;

       (1)  before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for Reserve- component retired pay; or

       (2)  during the 90 – day period beginning on the date he receives notification under section 12731 (d) of this title that he has completed the years of service required for eligibility for reserve – component retired pay if he had not made an election under subsection (a)(2)(B) to participate in the plan.

   b.  Under subparagraph B, is a member of a Reserve component not described in subparagraph A and dies from an injury incurred or aggravated in the line of duty during inactive duty training.

7.  Title 10, U.S. Code, section 1451C provides for annuities for survivors of certain persons dying during a period of special eligibility for SBP.  In general – In the case of an annuity provided under section 1448(d) or 1448(f) of this title, the amount of the annuity shall be determined as follows:

   A Beneficiary under 62 years of age – If the person receiving the annuity is under 62 years of age or is a dependent child when the member or former member dies, the monthly annuity shall be in the amount equal to 55 percent of the retired pay to which the member or former member would have been entitled if the member or former member had been entitled to that pay when he died determined as follows:
   
       (i)  In the case of an annuity provided under section 1448(d) of this title (other than in a case covered by clause (ii), such retired pay shall be computed as if the member had been retired under section 1201 of this title on the date of the member’s death with a disability rated as total.
   
       (ii) In the case of an annuity provided under section 1448 (d)(1)(A) of this title by reason of death of a member not in line of duty, such retired pay shall be computed based upon the member’s years of active service when he died.

       (iii) In the case of an annuity provided under section 1448(f) of this title, such retired pay shall be computed based upon the member or former member’s years of active service when he died computed under section 12733 of this title. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM’s duty status at the time of his death should be changed to ADT has been considered and appears to lack merit.

2.  The FSM was performing an AFTP while in an IDT status at the time his helicopter crashed.  The applicant has failed to present evidence to show otherwise.

3.  While it is regrettable that the applicant was led to believe she was entitled to a greater benefit for her children that she was in fact not entitled to receive, it is noted that the requirement to repay the debt has been waived and she has been allowed to keep funds to which she was not otherwise entitled.

4.  Unfortunately, the applicant has not provided evidence to show the FSM was in an active duty status at the time of his death and records that are correct are not normally changed in order to qualify individuals for benefits.  This is especially true in cases such as the applicant’s since it would afford her benefits not afforded to others in similar circumstances and in practical effect nullify distinctions contained in duly enacted Federal legislation.  

5.  Accordingly, there appears to be no basis to grant her request to change the FSM’s status to reflect that he was in an active duty status. 

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.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest condolences to the applicant on the passing of her late husband, and wants to thank the applicant for the sacrifices he made in service to the United States.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20120006760





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ABCMR Record of Proceedings (cont)                                         AR20120006760



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