MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 April 2002
	DOCKET NUMBER:   AR2001059913

	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	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 the DD Form 1300 (Report of Casualty) completed on her husband, a deceased former service member (FSM), be corrected in Block 8 (Duty Status) to indicate that the FSM was on active duty

APPLICANT STATES:  In effect, that she and her children have been denied dependency and indemnity compensation (DIC) by the Department of Veterans Affairs (VA) because the FSM’s DD Form 1300 indicates in Block 8 that her husband was “NOT IN A DUTY STATUS.”

COUNSEL CONTENDS:  That the applicant has limited resources and is being deprived of DIC payments by the PRARNG’s erroneous determination of the FSM’s duty status.

EVIDENCE OF RECORD:  The FSM’s military records show:

He was a member of the Puerto Rico Army National Guard (PRARNG), serving as a Specialist Four (SP4/E-4) in the 770th Military Police Company, Aguadilla, Puerto Rico.  During the period 6-21 July 1975, the FSM reported with his unit to Camp Salinas, Ponce, Puerto Rico, for 15 days of active duty for training (ADT).  On 14 July 1975, he became ill and reported to sick call complaining of severe pain in his left flank.  He was given demoral and atropine and transferred to the VA Hospital, San Juan, Puerto Rico, where he was diagnosed with renal colic.

The FSM did not return to his unit, but remained instead as a patient in the VA Hospital.  The unit concluded its ADT on 21 July 1975 and returned to its home base of Aguadilla; the FSM was still a patient in the VA Hospital.  On 12 August 1975, the FSM died of cardiac arrest.  No line of duty determination was made.

On 7 October 1975, a DD Form 1300 was completed.  In Block 8 (Duty Status), the report stated “NOT IN A DUTY STATUS.”  Subsequently, the applicant applied to the VA for DIC payments for herself and her children.  The VA denied her claim.

On 3 September 1998, the applicant, through counsel, wrote to the Adjutant General of Puerto Rico.  She asked for three items:  (1) a line of duty investigation; (2) an NGB Form 22 (Report of Separation); and (3) verification that the FSM had been extended on ADT during the period 22 July 1975 through 12 August 1975.  On 20 December 1999, The Adjutant General’s Office responded to the applicant’s letter.  The response stated that a line of duty investigation should have been conducted per National Guard Regulation (NGR) 600-3, page 2, paragraph 5a, and directed the Directorate of Personnel, PRARNG to conduct one.  It further stated that the FSM should have been extended on ADT by unit orders, but that such orders could not be located almost 25 years later.  Finally, The Adjutant General’s Office stated that NGB Form 22 is only used for soldiers being discharged and is not issued when a soldier dies.
Army Regulation 135-200 (Active Duty for Training and Annual Training of Individual Members) prescribes policies and procedures on specific types and periods of training for Reserve Component soldiers.  It states, in pertinent part, that the orders of a member on ADT for 30 days or less will not be amended to extend the training period when that member is hospitalized when the ADT ends. It only provides for the retention of the member, with his or her consent, in a patient status beyond the termination date of the ADT orders.  It does, however, provide for the payment of basic pay and allowances during such time as the member is hospitalized, but not for more than 6 months after the end of the period of ADT.

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 FSM was hospitalized for an illness while serving on ADT.  When the period of ADT concluded, he remained in the hospital in a patient status.  He died 22 days later.  A DD Form 1300 was eventually completed which listed the FSM as “NOT IN A DUTY STATUS” at the time of his death.

2.  In order to be carried in a duty status, the FSM’s ADT tour would have had to have been extended from 21 July 1975 through the date of his death on 12 August 1975.  In accordance with AR 135-200, hospitalized soldiers on ADT for 30 days or less may not have their ADT tours extended.  The response from The Adjutant General’s Office, PRARNG, erroneously stated the opposite.

3.  The FSM should have been retained in a patient status from 22 July 1975 through 12 August 1975 which would have entitled him to basic pay and allowances for the period.

4.  Following the FSM’s death, his unit should have conducted a line of duty investigation.

5.  Eligibility for veteran's benefits does not fall within the purview of this Board.  The Department of Veterans Affairs, under criteria and rules established by that agency, administers DIC payments.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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.

NOTE:  The National Guard Bureau should urge the PRARNG to complete the line of duty investigation into the FSM’s death as expeditiously as possible.

BOARD VOTE:

________  __RKS__  ____CLG   GRANT

________  ________  ________  GRANT FORMAL HEARING

__WTM__  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2001059913	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020402	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	100.0000	
2.	122.0000	
3.		
4.		
5.		
6.