BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120008216 


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 father of a deceased former service member (FSM), requests correction of item 12b (Separation Date This Period) of his late son's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 12 February 2012 instead of 9 February 2012.

2.  The applicant states, in effect:

	a.  His son's release from active duty (REFRAD) date shown on his DD Form 214 should read 14 February 2012 because his leave balance was not paid; this leave balance should be accounted for when determining his REFRAD date.  The decision will have a direct impact on whether his son was in a duty status at the time of his death on 12 February 2012.  This will also have a direct impact on the death gratuity and funeral cost benefits to which the family could be entitled.

	b.  The FSM graduated from advanced individual training (AIT) at Fort Leonard Wood, Missouri, on 9 February 2012.  At that time he had 4.5 days of leave accrued that was not accounted for on the DD Form 214.  It had been zeroed out in item 16 (Days Accrued Leave Paid) of his DD Form 214.  The leave has not been processed, taken, or paid.  It is in the best interests of the FSM and his family for him to have taken his leave rather than payment in the place of leave.

	c.  After the FSM graduated from AIT on 9 February 2012, he returned home feeling very sick.  He died on 12 February 2012.  It was discovered he had pneumonia.

3.  The applicant provides:

* active duty orders
* FSM's DD Form 214
* death certificate
* leave and earnings statements (LES's)
* Leave Master Log
* police report
* letter from a Member of Congress, dated 17 August 2012

 CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Nebraska Army National Guard (NEARNG) on 24 August 2010.  He was ordered to active duty for training on 10 November 2011 and he was REFRAD on 9 February 2012 and returned to the ARNG.

2.  His DD Form 214 shows in:

* item 12b the entry "2012  02  09 [9 February 2012]"
* item 16 the entry "0"

3.  There is no evidence which shows the FSM was on active duty after 9 February 2012.

4.  Records from the Defense Finance and Accounting Service confirm his last day on active duty was 9 February 2012.

5.  The FSM died on 12 February 2012.  His death certificate shows the cause of death was a combination of acute bronchopneumonia and a toxic level of methadone.  His autopsy and medical examiner report is not available.

6.  There is no evidence of record which shows the FSM suffered from a respiratory impairment while serving on active duty.

7.  There is no line-of-duty (LOD) investigation available.

8.  The applicant provided the FSM's LES, dated 22 February 2012, which shows he had a balance of 4.5 days of leave.

9.  The available records do not contain current pay records to indicate whether a death gratuity or mortuary benefits have been paid.

10.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommends disapproval of the applicant’s request.  The opinion points out:

	a.  The FSM's DD Form 214 shows he was REFRAD on 9 February 2012.

	b.  The FSM died on 12 February 2012.

	c.  The applicant contends the FSM was not paid the balance of his leave as reflected on the LES, dated 22 February 2102, which shows a balance of 4.5 days.  The applicant would prefer that the balance of leave due be credited to the FSM's REFRAD date thus affecting his duty status at the time of his death.

	d.  Paragraph 7-5 of Army Regulation 600-8-10 (Leave and Passes) states Soldiers who have accrued leave upon release from active duty for training will be given a lump-sum payment for such leave.

	e.  If payment for the balance of the FSM's accrued leave has not been processed, then the NEARNG should submit the necessary documents to DFAS for completion of this action.

	f.  In consultation with NGB's Judge Advocate General's office, consideration should be given to conducting an informal LOD investigation due to the timing of the FSM's death.  Upon completion of the medical examination by the coroner's office, if it is determined that the cause of the FSM's death may have been incurred while he was serving on active duty, a request should be submitted to the NEARNG Surgeon General's office to conduct an informal LOD.  The coroner's office should provide the appropriate evidence to the NEARNG Surgeon General's office for its consideration when performing the investigation to determine if the Soldier's death was, in fact, incurred in the LOD.  Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) was cited.

	g.  The State concurs with this recommendation.

11.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 31 May 2012, he responded.  In summary, he states:

* corrections still need to be made to the FSM's DD Form 214
* a formal LOD investigation or an informal LOD investigation needs to be completed surrounding his son's death
* correcting item 12b of the FSM's DD Form 214 will correct the injustice of his son being REFRAD while suffering from the medical condition that resulted in his death
* the NEARNG will not perform an LOD without guidance from this Board
* the NEARNG feels that Fort Leonard Wood should complete the LOD investigation surrounding the development of his son contracting acute bronchial pneumonia while serving on active duty
* his son passed away approximately 50 hours from the date of his graduation
* for whatever reason, he cannot get anyone from either chain of command to take action
* a medical professional needs to review his son's autopsy results and gather sworn statements from members in his platoon to determine that he was, in fact, very sick during the last several weeks of AIT
* the FSM specifically told him he didn't go to sick call because they were completing their field training exercise and he would have been told to return to the field and "suck it up"
* his son is being denied a death gratuity that he feels is due to his estate

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

13.  Army Regulation 600-8-4, paragraph 1-7 (Chief, NGB), states the Chief, NGB, is responsible for the LOD investigation process within the ARNG.  Paragraph 2-2f (Reasons for Conducting LOD Investigations) states that in determining whether a veteran or his or her survivors or family members are eligible for certain benefits, the Department of Veterans Affairs (VA) makes its own determinations with respect to an LOD.  These determinations rest upon the evidence available.  Usually this consists of those facts that have been officially recorded and are on file within Department of the Army, including reports and LOD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that a disabling injury or death be service connected, which means the disability was incurred or aggravated in the LOD (Title 38, U.S. Code, section 101).  The statutory criteria for making such determinations are in Title 38, U.S. Code, section 105.

14.  Army Regulation 600-8-4, paragraph 2-3c (Requirements for LOD Investigations), states investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  A formal LOD investigation must be conducted when requested or directed for other cases.

15.  Army Regulation 600-8-4, paragraph 3-1 (General), states the unit commander will conduct an informal LOD investigation when the circumstances warrant or require one.

16.  Title 10, U.S. Code, section 1476, states that except as provided in section 1480 of this title, the Secretary concerned shall pay a death gratuity to or for the survivors prescribed in section 1477 of this title of each person who dies within 120 days after discharge or release from active duty or inactive duty training.  A death gratuity may be paid only if the Secretary of Veterans Affairs determines the death resulted from an injury or disease incurred or aggravated during the active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The Army Board for Correction of Military Records (ABCMR) begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR is not an investigative body.

2.  The applicant contends the REFRAD date on the FSM's DD Form 214 should show 14 February 2012 because his leave balance was not paid and this leave should be accounted for in computing his REFRAD date.

3.  The DD Form 214 is a "snapshot in time" and is a reflection of the FSM's record of active Army service at the time of his separation from active duty.

4.  The evidence shows the FSM was ordered to active duty for training on 10 November 2011 and he was REFRAD on 9 February 2012 which is properly reflected in item 12b of his DD Form 214.

5.  The FSM had 4.5 days of accrued leave at the time of his death.  However, the governing regulation states Soldiers who have accrued leave upon release from active duty for training will be given a lump-sum payment for such leave.  Regrettably, there is no basis for granting the applicant's request to amend item 12b of the FSM's DD Form 214.

6.  There is a significant body of evidence that is not included in the record and therefore is unavailable to the Board.  For example, the medical examiner's autopsy report is not available and there is no evidence other than the applicant's statements that the FSM suffered from some form of respiratory impairment while serving on active duty.  There is no LOD investigation report.  The record does not contain the results of medical testing.  It does contain a death certificate which indicates the cause of death included a "toxic level of methadone."  The file does not contain current pay records to indicate whether a death gratuity or mortuary benefits have been paid.

7.  In order to receive the death gratuity, a Reserve Soldier must be serving on active duty, inactive duty, or within 120 days of release from active duty or inactive duty.  The FSM was released from active duty approximately 3 days before his death.  The evidence suggests that this benefit may be available to the applicant.  However, the Secretary of Veterans Affairs must make a determination that the death resulted from an injury or illness incurred or aggravated while serving on active duty.  The ABCMR does not have authority to change a VA record.  The applicant did not indicate that the VA has or has not made the required determination.

8.  Although the applicant contends the NEARNG will not prepare an LOD without guidance from this Board, this Board cannot direct the NGB to conduct an LOD investigation.  However, the governing regulation states the Chief, NGB, is responsible for the LOD investigation process within the ARNG.  In accordance with the NGB advisory opinion and the State's concurrence with the advisory opinion recommendation, NGB should request that the NEARNG conduct an informal LOD.

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 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)                                         AR20120008216



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ABCMR Record of Proceedings (cont)                                         AR20120008216



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