IN THE CASE OF:	  

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130018524 


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 the records of her deceased son, a former service member (FSM), be corrected to show he remained on active duty on the date of death rather than placed on the temporary disability retired list (TDRL). 

2.  The applicant states the FSM was struck by a vehicle on 14 December 1995 and transported to Blanchfield Community Hospital at Fort Campbell, KY, where he was pronounced dead.  While in the hospital, the Army retired him.  By doing so, she had no benefits.  Her son should have been on active duty rather than retired on that date.  Additionally, at the time of his death, she was not assigned a Casualty Assistance Officer (CAO) and the Army never explained anything about her benefits.  She finally received the DD Form 1300 (Report of Casualty) on 29 November 2012 showing her son was placed on the TDRL. 

3.  The applicant provides:

* DD Form 1300, dated 14 December 1995
* DD Form 93 (Record of Emergency Data)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certification of Death
* Certification of Birth

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's records show he enlisted in the Regular Army on 1 June 1995 and he held military occupational specialty (MOS) 13B (Cannon Crewmember).  His records show he had no spouse or children.

3.  Following completion of MOS training, he was reassigned to the 3rd Battalion, 320th Field Artillery Regiment, Fort Campbell, KY.  On 12 October 1995, as part of his inprocessing at Fort Campbell, KY, he completed the following documents:

	a.  DD Form 93, wherein he listed his mother, the applicant, as the beneficiary of his death gratuity and any unpaid pay and allowances, at the rate of 100%. 

	b.  SGLV Form 8286 (Sevicemen's Group Life Insurance (SGLI) Election and Certificate) wherein he elected SGLI coverage at the rate of $200,000 and he designated his mother, the applicant, as the principal beneficiary and his father as the contingent beneficiary to receive payments of his insurance proceeds. 

4.  On 14 December 1995, the FSM sustained multiple injuries after being struck by a privately owned vehicle.  He was transported to Blanchfield Community Hospital at Fort Campbell, KY, where he was later pronounced dead at 16:15 hours on the same date. 

5.  Since this was an "Imminent Death" case, a medical evaluation board (MEB) immediately convened and after consideration of the medical records, the MEB found the FSM's injuries were severe and medically-unacceptable.  The MEB referred him to a physical evaluation board (PEB).  The PEB assigned him a 100% disability rating and placed him on the TDRL effective 14 December 1995. 

6.  On 14 December 1995, officials at Fort Campbell, KY, notified his next of kin - the applicant – of his death, and assigned Sergeant First Class R----l P---z of the 555th Maintenance Company, 108th Air Defense Artillery, Fort Polk, LA, as the Casualty Assistance Officer.
7.  On 21 December 1995, Headquarters, 101st Airborne Division, published Orders 355-0013 retiring the FSM effective 16:05 hours, 14 December 1995, and placing him on the Retired List effective 16:06 hours on the same date. 

8.  Also on 21 December 1996, the Commander, 101st Airborne Division, issued a DD Form 1300 on behalf of the Secretary of the Army.  This form listed the applicant as the beneficiary of his SGLI.  

9.  Also on 21 December 1995, an official at the Casualty Operations Center, U.S. Total Army Personnel Command, Alexandria, VA, dispatched a letter of condolence to the applicant on behalf of the Secretary of the Army, together with 10 copies of the DD Form 1300. 

10.  Subsequent to the FSM's death, the FSM's mother – the applicant - submitted a DD Form 397 (Claim Certificate and Voucher for Death Gratuity Payment) and a Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services). 

11.  On 5 January 1996, the Office of Servicemen's Group Life Insurance, Newark, NJ, issued the applicant a check in the amount of $200,550.00, $200,000 of which was the FSM's SGLI coverage and the remainder was arrears of pay.

12.  Department of Defense Instruction (DODI) 1332.38, paragraph E3.P1.6.4, in effect at the time, stated that "when competent medical authorities determine that a service member's death is expected within 72 hours, the member may be referred expeditiously into the Disability Evaluation System (DES).  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."

13.  Under the normal imminent death processing procedures established by the U.S. Army 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 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 MEB was completed and approved.  The physical evaluation board liaison officer (PEBLO) provided information to the 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.

14.  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.

15.  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.

16.  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.

17.  Death Gratuity is a tax-free, lump sum payment paid by DOD 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.

18.  The 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.  In 1995, the maximum SGLI benefit was $200,000.  Coverage terminates 120 days after leaving active duty.  The maximum coverage has increased through time; it was $250,000.00 in January 2002.  Public Law 109-13, enacted on 11 May 2005 increased the SGLI to $400,000 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 30 September 2005.  

19.  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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 1 September 1990, establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10, U.S. Code, and DOD Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability.  Paragraph 3-14 (Factors governing time of processing) states Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and procedural sequence to that of all other Soldiers.  

21.  Arrears of Pay is a one-time payment made to a beneficiary after the member's death.  The arrears of pay payment to the member's designated beneficiary will include the pro-rated amount of the member's final month’s pay, and any other money owed to the member at the time of his/her death.  In most cases, the arrears of pay will include the pro-rated amount of your final month's retirement pay.  This is because a member's entitlement to pay ends on the date of death.  The amount of the payment actually owed to the member will then be computed and given to the arrears of pay beneficiary.

DISCUSSION AND CONCLUSIONS:

1.  The governing regulation in effect at the time stated when competent medical authorities determined that a member's death was expected within 72 hours, the member may be referred expeditiously into the disability system.  To protect the interests of the Government and the member, disposition would be placement on the TDRL provided all requirements under statute, law, and regulation are met. 

2.  The FSM died on 14 December 1995.  Competent medical authorities immediately convened an MEB and a PEB that resulted in his placement on the TDRL effective 14 December 1995.  The applicant, having been designated as his beneficiary, was contacted by a Casualty Assistance Officer.  She was notified of his death and she was issued a Casualty Report.  Furthermore, she received the SGLI proceeds.  

3.  The law concerning imminent death had since been changed.  However, the change is not retroactive to the date of the FSM's death.  The FSM's TDRL processing was conducted in accordance with law and regulation in effect at the time.  There was neither an error nor an injustice.

4.  The FSM's tragic death is noted.  However, the applicant has not shown an error or an injustice in the processing of his TDRL processing or the benefits she received in connection with his death.  Furthermore, the applicant has not stated what specific benefits she was deprived of.  Therefore, there is insufficient evidence to grant her the requested relief. 

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)                                         AR20130018524





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018524



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1