IN THE CASE OF:
BOARD DATE: 21 October 2014
DOCKET NUMBER: AR20140004454
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 her late husband's death be shown to be connected to his period of service.
2. The applicant states the former service member (FSM) was deployed to Iraq from January 2005 through May 2006 and he was exposed to and worked around the burning pits. He was later diagnosed with and died from colon cancer. The Department of Veterans Affairs (VA) granted the FSM service connection for the cancer and his death.
3. The applicant provides copies of a VA Dependency and Indemnity Compensation (DIC) award letter, the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), and the FSM's death certificate.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel provides no additional requests, statements or evidence.
CONSIDERATION OF EVIDENCE:
1. The FSM's service medical and dental records are on permanent loan to the VA and are not available for review; the applicant has not provided any VA medical records or disability determinations.
2. The FSM enlisted in the Army National Guard (ARNG) on 17 February 2001, serving on active duty for training from 21 January through 3 June 2002.
3. He was mobilized on 28 January 2005 with service in Iraq from 13 April 2005 through 10 April 2006. He was released from active duty on 2 May 2006.
4. The available record shows he continued in an active status in the ARNG through 17 December 2011.
5. The FSM died from colon cancer on 18 March 2012. The death certificate indicates the FSM's cancer had its onset 2 years prior to his death.
6. A VA benefits notification letter, dated 2 December 2013, shows the applicant was awarded DIC, effective 1 December 2012, based on the determination that the FSM's death was the result of a service-connected disability.
7. DIC is a monetary benefit paid and administered by the VA to eligible survivors of military Servicemembers who died in the line of duty or eligible survivors of Veterans whose death resulted from a service-related injury or disease.
8. The Department of Defense Survivors Benefit Guide provides the following information related to military death benefits:
* Survivors of members who die on active duty are eligible for a variety of benefits
* In most cases, the benefits package available to Reservists who die on active duty does not differ significantly from the benefits available to survivors of active duty members
* Less generous assistance and income replacement are available to survivors of veterans who die of a service-related injury/illness more than 120 days after separation
* The benefits available to veterans are structured differently than those available to active duty members
* Survivors of veterans who were vested in the military retirement system can receive income replacement regardless of the cause of death if the member elected the Survivor Benefit Plan option
* For those who did not retire from the military, the veterans death must have been service related in order for the survivor to qualify for most of the benefits
9. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. An individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
DISCUSSION AND CONCLUSIONS:
1. The FSM appears to have been diagnosed with colon cancer 4 years after his release from active duty but while still in an active ARNG status. His service at this time was under State authority, not Federal authority.
2. Based on the DIC award letter, the VA had already granted the FSM service connection for his cancer and awarded the applicant DIC upon his death. This action on the part of the VA grants the applicant's request to show his death was related to his military service.
3. There are no additional military benefits or entitlements for survivors of FSM's who did not die on active duty or who were not retired, either due to longevity or physical disability.
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) AR20140004454
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ABCMR Record of Proceedings (cont) AR20140004454
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