RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04136 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her late husband’s records be corrected to reflect that he was on active duty when he died. 2. She be entitled to survivor benefits to include $12,110.00 for funeral expenses. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. By way of e-mail, she updates her request by making it clear that her request is to correct her late husband’s record to put him in an active duty status and reinstate all survivor benefits. 2. Her late husband was an Individual Mobilization Augmentee (IMA) and was on 70 day orders that ended on 30 Sep 09. His organization had a promotion party for him and asked him if he was available to return to duty the following week; however, he died on 2 Oct 09. It was not unusual for members to return to duty without being on orders until the administrative process caught up with them. 3. The Air Force casualty office provided assistance to her as if her late husband had been on active duty; however, over a year later she was informed that there was a debt created for funeral expenses. She trusted the Air Force to do the right thing as she had no idea of what rules applied to her situation. 4. She believes that her late husband would have been on orders and in an active duty status had it not been for the administrative process and fiscal year end. 5. A waiver was processed through SAF/MRB requesting remission of the debt; however, they stated that the debt was not eligible for remission. She acted in good faith and believes her requests should be given favorable consideration. In support of her request, the applicant provides a copy of her late husband’s death certificate, a copy of a Command Man-Day Allocation System (CMAS) Authorization to Publish an IMA Manpower Appropriation (MPA) Tour Order, and e-mail communications. Her complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The former member was an IMA assigned to the Pacific Command (PACOM)/J5, Air Force Reserve Command Readiness Management Group (AFRC RMG), Det 10/20 Camp Smith, HI. He served on active duty in the grade of lieutenant colonel and was on orders with AF/A1S, Arlington, VA, from 28 Jul 09 through 30 Sep 09. He died on 2 Oct 09. The applicant received $12,100.00 for funeral costs. A Commander Directed Report of Investigation (CDI) was conducted on 7 Apr 10 that revealed the former member’s supervisor intended for him to be on orders 1-2 Oct 09. The testimony and evidence further revealed that well-intentioned mortuary and casualty personnel acted to award benefits and entitlements on the flawed assumption that the former member was in an active duty status. They found no evidence of collusion or criminal intent, the preponderance of the evidence points to several points of failure. Those include direct supervision in A1SR, and a general lack of understanding of the processes required to generate orders (status) for Reserve personnel; AFDW/A1A authentication of a CMAS after the fact, based on the belief that the supervisor fully intended to keep the former member on orders (and in status); and the improper use of the CMAS at the Air Reserve Personnel Center (APRC) and the Air Force Reserve Command (AFRC) as a valid order. According to the CDI, AFRC/JA stated in a legal review that while a Line of Duty Determination is required for all members who die on active status to ensure the member was in fact “in the line of duty” at the time of death, it was not required in this case because the member was in a civilian status at the time of his death. AFBCMR sent a request for additional advisories on 1 Jun 12; 21 Sep 12, and 3 Oct 12 to AF/REP, AF/A1S, and AF/JAA, respectively. Per discussions with the Defense Finance Accounting Service (DFAS), there was a debt against the former member’s financial records; however, that debt has since been purged. The AFBCMR requested DFAS to provide a confirmation of the debt that was purged. As of this date, DFAS has not responded. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are at Exhibit C, G, and H. _________________________________________________________________ AIR FORCE EVALUATION: AF/RED [sic] recommends allowing the applicant to retain all benefits paid to date, but deny any further active duty-related benefits and entitlements, which will avoid penalizing the family members for a situation over which they had no influence. The complete REP evaluation is at Exhibit C. AF/JAA recommends denying the applicant’s request to amend her late husband’s orders by placing him on active duty at the time of his death. Providing the requested amendment would validate the illegal acts perpetrated by AF/A1 and the Air Force District of Washington (AFDW) personnel who have subsequently been held responsible and appropriately disciplined for their actions. Further, there is no error in law or demonstrable injustice to the applicant in denying this request. JAA recommends granting the applicant relief in the form of terminating the collection of the debt of $12,110.00 in mortuary expenses based upon a finding of injustice due to the applicant’s reasonable reliance on the representation by the Air Force personnel that she was entitled to the payment of these funeral expenses. By way of background, JAA provides an in-depth review of the Commander-Directed Report of Investigation and the Air Force Office of Special Investigations (AFOSI) Report of Investigation. In this respect, both investigations pertained to the improperly submitted CMAS request seeking authorization for the former member’s active duty orders to be retroactively extended by two days, and the Air Force Board for Correction of Military Records (AFBCMR) request that was filed by the applicant. JAA concludes that the former member was not on active duty at the time of his death and that due to an illegally composed and processed CMAS request to retroactively extend the former member’s period of active duty from 30 Sep to 2 Oct 09, various survivor benefits were improperly extended to the applicant, which included the improper payment of $12,100.00 in funeral expenses as well as the initiation (later reversed) of other survivor benefits. a. They found the CMAS request was improperly propounded by personnel assigned to AF/A1S and/or AFDW. The Readiness Management Group at Robins AFB, GA, (orders approving authority) was notified of the improper CMAS request and disapproved it. b. They found that there was no legal basis for amending the former member’s military records as requested. Without a doubt, making such an amendment would amount to the validation of unlawful activities. c. They found the CDI was legally insufficient as to its analysis of the actions of the three civilian employees involved in the issuance of the CMAS orders. d. AFOSI conducted a more detailed investigation and AFDW/JA found that it was legally sufficient, affirmed that the CMAS was improperly issued and the former member was not in an active duty status at the time of his death, and recommended disciplinary action against the three civilians. The complete AF/JAA evaluation, with attachments, is at Exhibit G. AF/A1S recommends that the debt collection for the funeral expenses of $12,110.00 be terminated. Unfortunately, because the former member was not on active duty at the time of his death, they do not believe the Air Force has the authority to award any additional active duty survivor benefits to the applicant. The complete AF/A1S evaluation is at Exhibit H. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 2 Nov 12 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with regard to the applicant’s request to have her late husband placed in an active duty status at the time of his death. In this respect, we took note of the applicant’s complete submission; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. While the applicant’s situation is regrettable, as noted by the Deputy Director for Administrative Law, Office of the Judge Advocate General, by placing the decedent in an active duty status at the time of his death would be to fabricate a fact, which is illegal and would also sanction those acts previously taken by personnel who have since been disciplined. The Board agrees that there was no basis to amend the former member’s orders that ended on 30 Sep 09 to make it appear that he was in an active duty status at the time of his death. Therefore, we find no basis upon which to favorably consider this portion of her request. 4. Notwithstanding the above, we find sufficient relevant evidence to demonstrate the existence of error or injustice warranting a measure of relief. In this respect, we find that the applicant relied upon the Air Force to provide appropriate assistance at the time of her husband’s death. We believe that the applicant acted in good faith and should not be held accountable for monies paid to her for funeral expenses. Given the circumstances surrounding the applicant’s current debt, we believe it was through no fault of her own that she was erroneously paid funds for her late husband’s funeral costs. Consequently, we recommend the records be corrected to the extent indicated below. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 7 October 2011, she applied for a waiver of the debt in the amount of $12,100.00 that was incurred as a result of receiving funeral expenses and her request was approved by competent authority. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01401 in Executive Session on 18 Dec 12, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Oct 11, w/atchs. Exhibit B. Letter, AFBCMR, dated 1 Jun 12, w/atchs. Exhibit C. Letter, AF/RED [sic], dated 9 Jul 12. Exhibit D. Letter, AFBCMR, dated 21 Sep 12, w/atchs. Exhibit E. Letter, AFBCMR, dated 26 Sep 12. Exhibit F. Letter, AFBCMR, dated 3 Oct 12, w/atchs. Exhibit G. Letter, AF/JAA, dated 5 Oct 12, w/atchs. Exhibit H. Letter, AF/A1S, dated 22 Oct 12. Exhibit I. Letter, AFBCMR, dated 2 Nov 12.