RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04620 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She receives an additional payment of $150,000 for Service Members Group Life Insurance (SGLI) or the decedent’s retirement date be changed to 1 Sep 05. ________________________________________________________________ APPLICANT CONTENDS THAT: On 20 Jul 05, the decedent was medically retired with a 100 percent disability rating. On 25 Jul 06, he passed away. Per 38 U.S.C. § 1968(a)(1)(A) a two year extension of SGLI coverage after the date of separation or release from active duty for medical retirement with a 100 percent disability rating was provided. She received an SGLI payment of $250,000, however, the Fiscal Year (FY) 2006 National Defense Authorization Act (NDAA) implemented Public Law 109-163 increasing SGLI coverage to $400,000 effective 1 Sep 05. However, at the time of his medical retirement, they were not advised about the pending SGLI coverage. Despite the decedent’s incompetence to make informed decisions regarding his involuntary retirement no guardian or legal representative was appointed. Even if it is concluded the SGLI coverage is limited to the amount that was in effect on the date of his death, there is substantial evidence of an error or injustice as there was no counseling on SGLI by the Physical Evaluation Board Liaison Officer (PEBLO) during the pre- separation counseling process. In a letter dated 15 Jun 11, the Office of Service Members Group Life Insurance (OSGLI) advised the applicant that the coverage was based on the amount in effect at the time the decedent was retired and denied her request for the additional payment. She was pre-occupied with the loss of her husband and raising two children and did not know how to file an application to the Board until recently. Her counsel references two cases involving retroactive increase of SGLI coverage. Although in the case of AR20080005338 the Board determined the applicant failed to submit evidence there was an error or injustice and denied the request, it was decided in the case of AR20060009083 that in keeping with the original intent of maximizing the applicant’s benefits, the service member’s records were corrected to show that he was on active duty at the time of his death and not on the Temporary Disability Retirement List (TDRL). If a service member’s status can be changed based on equitable considerations and in keeping with the original intent of maximizing benefits, then surely the decedent’s retirement date can be adjusted considering the lack of counseling on the SGLI coverage. The decedent was entitled to the increase in the SGLI coverage since his two year extended SGLI eligibility was based on 100 percent disability and the failure to pay the full amount of the SGLI coverage constitutes an error or injustice. In support of her requests, the applicant provides a letter from counsel, marriage certificate, Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) reports, medical documentation, SGLI payment notification, letter from OSGLI and other various documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Per 38 U.S.C. § 1968 SGLI coverage is provided for members who are 100 percent disabled at the time of separation for up to two years. According to AF Form 618, Medical Board Report, dated 25 May 05, the decedent was evaluated by an MEB and referred to the Informal Physical Evaluation Board (IPEB). According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 1 Jun 05, the IPEB found him unfit for duty and recommended permanent retirement with a disability rating of 100 percent for a diagnosis of frontotemporal dementia associated with cognitive disorder, secondary to primary neurodegeneration, bipolar disorder, social and industrial adaptability impairment and found him incompetent for pay and records. Per Special Order Number ACD-00775 dated 9 Jun 05, he was medically retired effective 20 Jul 05 with a compensable percentage for physical disability of 100 percent. He served 21 years, 1 month and 20 days on active duty. Effective 1 Sep 05, Public Law 109-13 increased SGLI coverage from $250,000 to $400,000 for all service members who died while on active duty retroactive to 1 Oct 01. On 25 Jul 06, the decedent died. OSGLI payment notification dated 18 Aug 06 shows the decedent’s spouse, received $250,608.17 for death benefits and settlement interest. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial of his request to change his retirement date to 1 Sep 05. The preponderance of evidence reflects that no error or injustice occurred during the disability process or at time of separation. On 1 Jun 05, the IPEB found him unfit for duty and recommended permanent retirement with a disability rating of 100 percent. On 5 Jun 05, the applicant on behalf of the decedent concurred with the findings and he was retired effective 20 Jul 05. The complete DPFD evaluation is at Exhibit B. AFPC/DPFC recommends denial of the applicant’s request for an additional $150,000 SGLI payment. Based on the denial recommendation of DPFD to change the decedent’s retirement date beyond the implementation of Public Law 109-13 effective 1 Sep 05, DPFC recommends the Board disapprove the applicant’s request. This recommendation is based on his ineligibility for the increase of death benefit under statute since his retirement was effective 20 Jul 05. The complete DPFC evaluation is at Exhibit C. AFPC/JA recommends denial. The applicant has failed to establish any error or injustice in this case. The applicant contends an injustice because after the IPEB found the decedent unfit and recommended permanent retirement with a disability rating of 100 percent the PEBLO did not counsel them that the SGLI policy limit would be raised to $400,000 on 1 Sep 05; and had they known it was going to be increased they would have delayed his retirement to qualify for the increase. Instead he retired on 20 Jul 05. The applicant assumes the decedent would have had the ability to delay his disability separation had he known the SGLI law was being amended on 1 Sep 05. AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, states AFPC/DPFD sets the scheduled retirement or discharge date. The applicant states she discovered she would not receive the maximum coverage of the SGLI benefits shortly after his death on 25 Jul 06. Any alleged wrongful acts of the PEBLO would have occurred prior to his death. The application alleging a wrongful act in 2005 and discovery of a wrongful act in 2006 is not timely filed in 2013. By law and regulation, AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 3.5, an application must be filed within three years after an error or injustice is discovered, or with due diligence, should have been discovered. An application filed later is untimely and may be denied by the Board on that basis unless it should be excused in the interest of justice. Federal courts have consistently defined “injustice” within the meaning of 10 U.S.C. § 1552 as that behavior or action that rises to the level that “shocks the sense of justice.” We have noted previously to this Board, this is a high standard which requires more than merely deciding that an action taken might be viewed as unfair or which has had arguably adverse consequences. It may be viewed as unfair that the applicant received the amount of $250,000 instead of $400,000 in SGLI benefits because the law changed after he retired; however, the applicant’s blame is misplaced to think it is the PEBLO’s responsibility to tell her to manipulate the system by purposely delaying the date of separation solely for monetary purposes. The complete JA evaluation is at Exhibit D. _____________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states that 38 U.S.C. § 1968(a)(1)(A), qualified the decedent for extended SGLI coverage because he was 100 percent disabled. In relevant part, this section provides that for members such as the decedent, SGLI coverage shall continue in effect and such insurance shall cease as follows two years after the date of separation or release from such active duty. In the case of service members who are entitled to extended coverage, the statute does not create different classes of coverage depending on the date of the service member’s retirement. The statute does not state coverage is limited to the amount that was in effect on the date of the member’s retirement. Had Congress intended to create different classes of coverage depending on the retirement date, it would have said so. The JA simply states the applicant has been unsuccessful in her attempt to persuade OSGLI that she is entitled to the statutory increases but does not provide any legal authority to support OSGLI contention that the amount of SGLI coverage is fixed as of the date of the service member’s disability retirement. Instead, because 100 percent disabled retirees are entitled to extended coverage, they also are entitled to any increases in such coverage existing as of the date of their death or expiration of coverage whichever first occurs. In regards to the untimely file, it was not until the spring of 2011 that she asked the casualty survivors benefits office at Joint Base Langley-Eustis, VA to request a review of her prior claim. It was not until 2012, that she discovered OSGLI’s interpretation was erroneous and inconsistent with the controlling federal statutes. The major error that was committed in this case was the misinterpretation of federal law by OSGLI. This case and the issue of when an applicant can be considered to have discovered an error or injustice can be distinguished from the facts at issue in McFarlane v. Secretary of the Air Force, 867 F. Supp. 405 91994. In that case, a surviving military spouse did not file her application with the Board to correct the amount of her survivor benefits annuity until seven years after her husband had died. Even if the application is untimely, the untimeliness should be excused in the interest of justice. Congress passed legislation on 11 May 05 which increased the amount of SGLI coverage effective 1 Sep 05. The memorandum by the JA argues that because DTM-11-015 does not include SGLI benefits as one of the topics with which a PEBLO must provide counseling there is no evidence of a breach of any duty regarding the adequacy of the disability retirement counseling provided to the decedent. DODI 1332.18, Separation or Retirement for Physical Disability, identifies counseling as one of the four components to the military disability retirement system. What is not addressed by the SJA’s memorandum is why eligibility for extended SGLI coverage was not included as a mandatory topic for counseling of 100 percent disabled service members. This omission is surprising considering that in cases where expeditious processing is requested, the Air Force casualty assistance representative must provide counseling regarding the Survivor Benefit Plan (SBP), Dependency and Indemnity Compensation (DIC), SGLI, Veterans Group Life Insurance (VGLI), National Service Life Insurance (NSLI) which is part of the imminent death processing checklist included in the Air Force Disability Counseling Guide for PEBLOs. The applicant has since located a copy of DD Form 2648, Pre- Separation Counseling Checklist, dated 28 Jun 05, which shows the decedent signed the checklist even though he was no longer competent. More importantly, the checklist makes no provision for any counseling on SGLI coverage. The logical conclusion is that neither the applicant nor the decedent was told about the increase in SGLI coverage because the Air Force had not revised the counseling procedures. Common sense suggests that counseling on extended SGLI coverage should be required in all cases involving 100 percent disabled service members who are eligible for such extended, temporary coverage particularly in cases involving progressive, terminal conditions. What makes this case unique is that he was processed for medical retirement after Congress passed legislation authorizing an increase in SGLI coverage but was retired 43 days before the increase became effective. Had he been aware that the increased amount of coverage would become effective on 1 Sep 05; a rational person would have considered what options they might have to delay retirement. The obvious procedure for the applicant would have been to either request a formal PEB (which was a matter of right) or take ordinary leave. There is an issue as to whether the applicant had the authority to sign a waiver on behalf of her husband. The form and the guide for PEBLO’s both assume that a spouse may make binding decisions on behalf of their incompetent spouse but the applicant had not been appointed either as guard or conservator of his estate by any court. This issue is mentioned to point out that the applicant’s decision to waive the formal PEB on behalf of the decedent was made without the benefit of any legal advice, without the legal authorization, without counseling by anyone in the Air Force regarding the pending increase in SGLI coverage, and without counseling as to whether his retirement should be postponed until after 1 Sep 05. The decedent should be considered eligible for the increased SGLI that became effective on 1 Sep 05 while on extended SGLI coverage or his retirement date should be amended to 1 Sep 05 to correct the error or injustice regarding his retirement date established without the benefit of informed consent. In further support of her request, the applicant provides counsel’s statement, copies of DD Form 2648 and AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition. The complete submission, with attachments, is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the decedent’s records should be changed to reflect an additional $150,000 SGLI payment or to change his retirement date to 1 Sep 05. We note that 38 U.S.C. § 1968(a)(1)(A), qualified the decedent for extended SGLI coverage because he was 100 percent disabled; however, as pointed out by DPFC, he is ineligible for the increase of death benefit under the statute since his retirement was effective 20 Jul 05 which is before Public Law 109-13 was implemented on 1 Sep 05. While counsel’s assertions of miscounseling are noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of this case by the Air Force Offices of Primary Responsibility. Additionally, counsels also asserts, in essence, that relief is warranted based on precedence and cites two Army BCMR cases, AR20060009083 and AR200800538 that he believes supports her requests. However, we disagree. Every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. After a careful review of the cases, we find AR20060009083 is not comparable to the existing case. In AR20060009083, the applicant was improperly counseled that her husband had to be retired in order for her to receive both the SGLI and Survivor Benefit Plan (SBP) annuity because he did not have 20 years of service. However, Public Law 107-107 changed in 2001 and the Army Board determined the increased SGLI coverage and SBP benefits would have been awarded had he died on active duty and granted the request. Although AR20080005338 is similar to the request before us, it was actually denied, therefore, this request adds no credence to the applicant’s request for an additional SGLI payment or to change the decedent’s retirement date to 1 Sep 05. In view of the foregoing and in the absence of evidence that the applicant was treated differently than others similarly situated, we find no equitable basis to grant any of the relief sought in this application. 4. 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 issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2013-04620 in Executive Session on 8 Jul 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Sep 13, w/atchs. Exhibit B. Letter, AFPC/DPFD, dated 8 Nov 13. Exhibit C. Letter, AFPC/DPFC, dated 16 Dec 13. Exhibit D. Letter, AFPC/JA, dated 24 Dec 13. Exhibit E. Letter, SAF/MRBR, dated 24 Jan 14. Exhibit F. Letter, Applicant’s Counsel, dated 20 Feb 14, w/atchs.