MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 June 2000                   
	DOCKET NUMBER:   AR2000039114

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That she be determined to be eligible to receive the Servicemen’s Group Life Insurance (SGLI) policy benefits of her deceased spouse, a former service member (FSM).  

APPLICANT STATES:  That the FSM was placed on the permanent disability retired list on 12 June 1993.  He died on 5 October 1993.  She believes she is entitled to $100,000.00 as his SGLI beneficiary since he died within 120 days of his retirement.

The FSM’s military records show that he enlisted in the Regular Army on           25 August 1965.  

On 15 November 1990, the FSM completed VA Form 29-8286, SGLI Election and designated his spouse, the applicant, as his beneficiary.

On 13 August 1992, the FSM was found by a physical evaluation board (PEB)
to be unfit for duty by reason of a delusional disorder, jealous type.  The PEB found that his condition had not stabilized to the point that a permanent degree of severity could be determined so he was placed on the temporary disability retired list (TDRL) with a disability rating of 10 percent.

On 19 August 1992, the FSM was retired by reason of a physical disability, temporary, and placed on the retired list 20 August 1992.  He was a command sergeant major, E-9 at the time with over 26 years of creditable active federal service.

On or about 9 April 1993, a TDRL evaluation found that the FSM remained unfit for military duty and referred him to a PEB for consideration of permanent retirement.  On 12 May 1993, a PEB found the FSM to be unfit for duty by reason of a delusional disorder, jealous type, manifested by psychotic delusion of wife’s infidelity and recommended that he be permanently retired with a 10 percent disability rating.  On 11 June 1993, the FSM was removed from the TDRL and on 12 June 1993 he was permanently retired.

On 5 October 1993, the FSM died of a heart attack.

The SGLI program is a Department of Veterans Affairs program.  Only certain portions of the program, such as preparing the VA Form 29-8286 and collecting premiums, are administered by the military services.  An active duty soldier with SGLI coverage is entitled to such coverage for up to 120 days after discharge or release from active duty.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Paragraph 7-2 provides that a soldier’s name may be placed on the TDRL when it is determined that the soldier is qualified for disability retirement under Title 10, U. S. Code, section 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.  

Title 10, U. S. Code, section 1201 provides that, when a member described in subsection (c) (i. e., including a member of a regular component of the armed forces entitled to basic pay) is unfit to perform the duties of his grade or rank because of a physical disability incurred while entitled to basic pay the Secretary concerned may retire the member with retired pay.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board concludes that there was no Government error in this case.  The FSM was effectively retired and drawing retired pay when he was placed on the TDRL on 20 August 1992.  His permanent retirement on 12 June 1993 was only a change from a “temporary” to a “permanent” status of retirement.  Therefore, his death on 5 October 1993 occurred more than 120 days after he was retired.

2.  The circumstances surrounding the FSM’s disability retirement are unfortunate but the Army has no jurisdiction over the pay out of an SGLI claim.  Considering the circumstances, the applicant could apply to the VA for an exception to policy.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__owt___  __kan___  __mvt___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR200039114	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.