IN THE CASE OF: BOARD DATE: 29 October 2015 DOCKET NUMBER: AR20150001586 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the mother of a deceased former service member (FSM), requests reconsideration of her earlier request to correct her late son's records to show he remained on active duty on the date of his death rather than having been placed on the Temporary Disability Retired List (TDRL). 2. The applicant states: a. On 14 December 1995, her son was struck by a private vehicle driven by a Soldier and transported to Fort Campbell, KY, where he was pronounced dead. While in the hospital, the Army retired him. By doing so, she has no benefits. Her son should have remained on active duty rather than retired on that date. b. His DD Form 214 (Certificate of Release or Discharge from Active Duty) says he was on active duty at the time of his death. c. At the time of her son's death, she was not assigned a Casualty Assistance Officer (CAO) and the Army never explained her benefits based on his death. She finally received the DD Form 1300 (Report of Casualty) on 29 November 2012 showing her son was placed on the TDRL. 3. The applicant provides: * undated letter to the Office of the Secretary of Defense * memorandum from the Department of Veterans Affairs, dated 7 August 2013 * photographs of envelopes CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130018524 on 2 December 2013. 2. The FSM enlisted in the Regular Army on 1 June 1995. 3. Records show the applicant was designated as the beneficiary of the FSM's death gratuity, any unpaid pay and allowances, and Servicemen's Group Life Insurance (SGLI). 4. On 14 December 1995, the FSM sustained multiple injuries after being struck by a privately-owned vehicle at approximately 0145 hours. He was transported to Fort Campbell, KY, where he was later pronounced dead at 0415 hours on the same date. 5. Since this was a case of "imminent death," a medical evaluation board (MEB) immediately convened and, after consideration of the medical records, the MEB found the FSM's injuries were severe and medically unacceptable. The MEB referred him to a physical evaluation board (PEB). The PEB assigned him a 100-percent disability rating and placed him on the TDRL effective 14 December 1995. 6. Records show officials at Fort Campbell, KY, notified his next of kin, the applicant, of his death on 14 December 1995 and assigned a CAO. On 21 December 1995, an official at the Casualty Operations Center, U.S. Total Army Personnel Command, Alexandria, VA, issued a letter of condolence to the applicant on behalf of the Secretary of the Army, together with 10 copies of the DD Form 1300. 7. On 21 December 1995, Headquarters, 101st Airborne Division, published Orders 355-0013 retiring the FSM effective 0405 hours, 14 December 1995, and placing him on the Retired List effective 0406 hours on the same date. 8. On 5 January 1996, the Office of SGLI, Newark, NJ, issued the applicant a check in the amount of $200,550.00, $200,000.00 of which was the FSM's SGLI coverage and the remainder was his arrears of pay. 9. Department of Defense (DOD) Instruction 1332.38, paragraph E3.P1.6.4, in effect at the time, stated that "when competent medical authorities determine that a service member's death is expected within 72 hours, the member may be referred expeditiously into the Disability Evaluation System (DES). To protect the interests of the government and the service member, disposition shall be placement on the TDRL provided all requirements under statute, law, and regulation are met. In no case shall a service member be retired after his or her death or before completion of a required line of duty determination. Determination of death shall be made under the laws of the state where the member is assigned or under military medical standards when the member is outside the United States." 10. Under the normal imminent death processing procedures established by the U.S. Army Physical Disability Agency, expeditious processing was not warranted based solely on the diagnosis of a terminal illness or the risks associated with surgery. Expeditious processing was warranted only when the attending physician made the prognosis that a Soldier's death was expected within 72 hours. In such cases, in simplified terms, the attending physician completed and signed the Standard Form 502 (Narrative Summary) and included the statement that death was expected within 72 hours. The Deputy Commander of Clinical Services or his designated representative ensured that the MEB was completed and approved. The PEB liaison officer provided information to the PEB to complete certain items on the DA Form 199 (PEB Proceedings). The PEB adjudicated the case and ultimately rendered findings and recommendations pertaining to the Soldier's medical conditions and disposition. Once the PEB liaison officer had received the results of the PEB, either the Soldier or the next of kin's concurrence was obtained regarding the findings and recommendation(s) of the PEB. If the Soldier was deemed incompetent and the next of kin could not be located, the medical treatment facility commander could make an election on behalf of the Soldier. 11. The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2002 (Public Law 107-107), dated 28 December 2001, and codified at Title 10, U.S. Code, section 1448(d)), authorized survivor benefits for a surviving spouse of any member who died in the line of duty while serving on active duty. In the event the service member had a surviving spouse and surviving children, this change only allowed the surviving spouse to receive SBP payments that were offset by Dependency and Indemnity Compensation, rather than allowing the SBP to pass to the children. Public Law 107-107 was effective retroactive to 10 September 2001. 12. The NDAA for FY04 (Public Law 108-136), dated 24 November 2003, amending Title 10, U.S. Code, section 1448(d), rectified this issue by authorizing the "Secretary concerned in consultation with the surviving spouse" to determine whether the service member's surviving children should receive SBP instead of the surviving spouse. Public Law 108-136 became effective for Soldiers who died on or after the enactment of the NDAA for FY04 on 24 November 2003. After this change, in January 2004 imminent death processing was discontinued. 13. Subsequent to the discontinuance of imminent death processing, entitlement to additional monetary benefits for survivors of Soldiers who died in an active duty status continued to evolve. 14. Death gratuity is a tax-free, lump sum payment paid by DOD in the event of a death while the member is serving on active duty (including certain members of the Reserve Components during training), or those Soldiers who die within 120 days after release from active duty if the death is due to a service-related disability. In FY04, the death gratuity statute was amended to provide that the gratuity would be adjusted upward by the same amount as any increase in military basic pay. As part of what was formally called the Death Benefits Enhancement, the death gratuity was increased from $12,000.00 to $100,000.00 in a case of death resulting from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions, or situations involving an instrumentality of war). This increase was made retroactive for deaths that occurred on or after 7 October 2001. The NDAA for FY06 (Public Law 109-163, enacted 6 January 2006) increased the death gratuity to $100,000.00 for all deaths retroactive to 7 October 2001 without regard to the "combat" provision of the earlier law. 15. The SGLI makes life insurance protection available to members of the Uniformed Services at a reasonable cost. All members of the Uniformed Services are automatically insured for the maximum coverage under SGLI. In 1995, the maximum SGLI benefit was $200,000.00. Coverage terminates 120 days after leaving active duty. The maximum coverage has increased through time; it was $250,000.00 in January 2002. Public Law 109-13, enacted on 11 May 2005 increased the SGLI to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war). This increase was made retroactive for deaths that occurred on or after 7 October 2001 and was to have terminated on 30 September 2005. 16. The NDAA for FY06 (Public Law 109-163, enacted 6 January 2006), increased the SGLI to $400,000.00 and removed the "combat" stipulations. It also provided for a $150,000.00 SGLI death gratuity payment to any service member who died while serving on active duty between 7 October 2001 and 11 May 2005 which effectively equalized the benefits for most Soldiers who died while serving on active duty whether death was related to combat action or not. 17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability. Paragraph 3-14 (Factors Governing Time of Processing) stated Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and procedural sequence to that of all other Soldiers. 18. Arrears of pay is a one-time payment made to a beneficiary after the member's death. The arrears of pay payment to the member's designated beneficiary will include the pro-rated amount of the member's final month's pay and any other money owed to the member at the time of his/her death. In most cases, the arrears of pay will include the pro-rated amount of the member's final month's retired pay. This is because a member's entitlement to pay ends on the date of death. The amount of the payment actually owed to the member will then be computed and given to the arrears of pay beneficiary. DISCUSSION AND CONCLUSIONS: 1. The applicant requests correction of her late son's records to show he remained on active duty on the date of his death rather than having been placed on the TDRL. 2. The governing regulation in effect at the time stated when competent medical authorities determined that a member's death was expected within 72 hours, the member may be referred expeditiously into the disability system. To protect the interests of the government and the member, disposition would be placement on the TDRL provided all requirements under statute, law, and regulation are met. 3. The FSM was seriously injured on 14 December 1995 and died later that day subsequent to his injuries. Competent medical authorities immediately convened an MEB and a PEB that resulted in his placement on the TDRL effective 14 December 1995 based on the initial medical evaluation that the FSM’s death was imminent within 72 hours based on the severity of his injuries. 4. The evidence of record does not support the applicant's contention that she was not assigned a CAO. The evidence shows she was contacted by a CAO following her son's death and she received the SGLI proceeds on or about 5 January 1996. 5. The law concerning imminent death has since been changed. However, the change is not retroactive to the date of the FSM's death. The FSM's TDRL processing was conducted in accordance with the law and regulations in effect at the time. There was neither an error nor an injustice. The applicant failed to provide an argument with supporting evidence to show that the Government erred in the administrative processing of her son’s retirement and placement on the TDRL. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130018524, dated 2 December 2013. _______ _ _X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150001586 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001586 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1