MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002072513

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he held the rank and grade of Major, O-4 so her Dependency and Indemnity Compensation (DIC) may be increased.

APPLICANT STATES:  That the FSM was posthumously promoted to Major retroactive to 30 March 1966.  He was on the promotion list for several months and was due to be promoted on 20 August 1966.

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

After having had prior enlisted service, he was commissioned out of the U. S. Military Academy and entered active duty on 4 June 1957.  He was promoted to Captain, O-3 on 4 June 1964.  He arrived in Vietnam on or about 25 March 1966. He was killed in action on 12 August 1966.  

By message date/time group 1300Z August 1966, Headquarters, Department of the Army, Casualty Branch informed the Commanding General, U. S. Army Vietnam that the FSM had been posthumously promoted to the rank of Major effective 30 March 1966 with a date of commission of 18 August 1966.  

Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  In pertinent part, it states that an officer may be posthumously promoted if, at the time of death, proper authority had approved the recommendation of the promotion selection board at the time of death, the death was not due to the officer’s own misconduct, and the officer was not on an unauthorized absence.

Title 10, U. S. Code, section 1521 states that the President may issue an appropriate commission in the name of a member of the armed forces who, after 3 September 1939, was officially recommended for appointment or promotion to a commissioned grade and the recommendation for whose appointment or promotion was approved by the Secretary concerned but was unable to accept the promotion of appointment because of death in line of duty.  Section 1523 states that no person is entitled to any bonus, gratuity, pay, or allowance because of a posthumous commission or warrant.

The Department of Veterans Affairs (DVA) booklet, Federal Benefits for Veterans and Dependents, 2002 edition, states that DIC payments may be available for a surviving spouse who has not remarried.  One of the eligibility criteria is for the deceased to have died from a disease or injury incurred or aggravated while on active duty.

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.  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.

2.  At the time of the FSM’s death, the Army promoted him, thereby showing that he held the rank of Major.  As the applicant acknowledges, he would not have ordinarily been promoted until shortly after his death.  The Board offers the applicant condolences on her loss; however, by law the FSM’s posthumous promotion did not create an entitlement to any bonus, gratuity, pay, or allowance. Dependency and Indemnity Compensation is a DVA program.  The DVA operates under its own policies and laws and the Department of Defense has no jurisdiction over its affairs if it chooses not to make an exception to the law.

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

__RVO__  __RTD__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072513	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.