R 240729Z MAR 03
FM CMC WASHINGTON DC(n)
TO ML MARADMIN(n)
MARADMIN
BT
UNCLAS
MARADMIN 135/03
MSGID/GENADMIN/CMC WASHINGTON DC MMSR//
SUBJ/POLICY, PROCEDURES, AND RESPONSIBILITIES FOR MAKING LINE OF DUTY
/DETERMINATIONS WHEN AN ACTIVE-DUTY SERVICE MEMBER DIES//
REF/A/DOC/NDAA 2002/28DEC2001//
REF/B/DOC/OSD MEMORANDUM/02MAY2002//
REF/C/MSG/CMC MMSR/290900ZMAY2002//
REF/D/DOC/JAGMAN/20AUG2001//
NARR/REF A IS SECTION 642, NATIONAL DEFENSE AUTHORIZATION ACT OF
FISCAL YEAR 2002 (NDAA 2002), PUBLIC LAW 107-107, DECEMBER 28, 2001,
WHICH EXPANDED BENEFITS AND COVERAGE UNDER THE UNIFORMED SERVICES
SURVIVOR BENEFIT PLAN (SBP). REF B IS THE OSD (FMP) MEMORANDUM
"SURVIVOR BENEFIT PLAN (SBP) ANNUITIES WHEN MEMBER DIES ON ACTIVE
DUTY." REF C IS MARADMIN 294-02 PERTAINING TO "SURVIVOR BENEFITS
FOR ALL ACTIVE DUTY MARINES." REF D IS THE MANUAL OF THE JUDGE
ADVOCATE GENERAL (JAGMAN), WHICH CONTAINS REGULATIONS FOR
ADMINISTRATIVE INVESTIGATIONS AND LINE OF DUTY DETERMINATIONS.
//
POC/R. J. CORDERO/CAPT/MMSR/-/TEL:1-800-336-4649
/EMAIL:CORDERORJ@MANPOWER.USMC.MIL//
GENTEXT/REMARKS/1. THIS MARADMIN ESTABLISHES POLICY, PROCEDURES,
AND RESPONSIBILITIES FOR MAKING LINE OF DUTY (LOD) DETERMINATIONS
WHEN AN ACTIVE-DUTY SERVICE MEMBER DIES, IN ORDER TO DETERMINE
SURVIVOR BENEFIT PLAN (SBP) ELIGIBILITY AND CALCULATE BENEFITS FOR
QUALIFIED SURVIVORS. IT IMPLEMENTS REFERENCES A AND B, CLARIFIES
REF C, AND CHANGES REF D. REQUEST WIDEST DISSEMINATION TO ALL HANDS.
2. REF A MODIFIED THE SBP PROGRAM IN TWO IMPORTANT WAYS: FIRST,
SBP BENEFITS ARE NOW PAYABLE TO A QUALIFIED SURVIVOR SBP ANNUITE
WHEN AN ACTIVE DUTY SERVICE MEMBER WAS RETIREMENT ELIGIBLE AT THE
TIME OF DEATH. SECOND, THERE HAS BEEN AN INCREASE IN THE
CALCULATION OF THE SBP ANNUITY PAYABLE TO A QUALIFIED SURVIVOR IF
THE ACTIVE DUTY SERVICE MEMBER DIES IN THE LOD.
3. SBP ANNUITIES ARE CALCULATED AS A PERCENTAGE OF THE SBP BASE
AMOUNT. NORMALLY, THE ANNUITY IS 55 PERCENT OF THE SBP BASE AMOUNT.
WHEN AN ACTIVE DUTY DEATH IS DETERMINED TO BE IN THE LOD, THE SBP
BASE AMOUNT IS EQUAL TO RETIRED PAY AS IF THE SERVICE MEMBER
RETIRED WITH TOTAL (100 PERCENT) DISABILITY, WHICH IN TURN IS EQUAL
TO 75 PERCENT OF THE MEMBER'S BASE PAY (FINAL OR HIGH-36 PAY).
THUS, FOR AN ACTIVE DUTY DEATH DETERMINED TO BE IN THE LOD, THE
CALCULATION OF THE SBP ANNUITY PAYABLE TO A QUALIFIED SURVIVOR
WILL NORMALLY BE 55 PERCENT OF 75 PERCENT OF THE DECEASED SERVICE
MEMBER'S FINAL OR HIGH-36 PAY.
4. REF A ONLY AFFECTS THE SBP ELIGIBILITY DETERMINATION OR ANNUITY
CALCULATION IN CASES DETERMINED TO BE IN THE LOD. FOR CASES
DETERMINED TO BE NOT IN THE LOD, SBP ELIGIBILITY AND ANNUITY
CALCULATIONS REMAIN IN EFFECT UNDER THE RULES THAT EXISTED
PRIOR TO REF A. THAT IS, IF THE SERVICE MEMBER WAS NOT RETIREMENT
ELIGIBLE AT THE TIME OF DEATH, THEN SBP IS INAPPLICABLE. IF THE
SERVICE MEMBER WAS RETIREMENT ELIGIBLE AT THE TIME OF DEATH, AN SBP
ANNUITY WILL BE PAID TO A QUALIFIED SURVIVOR, BUT WILL NOT BE
COMPUTED ON THE BASIS OF A NOMINAL TOTAL DISABILITY RETIREMENT.
RATHER, THE SBP BASE AMOUNT WILL BE COMPUTED ON THE RETIREMENT FOR
SERVICE RULES THAT WOULD HAVE APPLIED IF THE SERVICE MEMBER HAD
RETIRED AT TIME OF DEATH.
5. PER REF B, LINE OF DUTY DETERMINATIONS ARE NOW REQUIRED IN ALL
ACTIVE DUTY DEATH CASES, RETROACTIVE TO 10 SEP 01.
A. "ACTIVE DUTY" IS DEFINED IN 10 U.S.C. 101(D)(1). IT
INCLUDES RESERVE MEMBERS ON ACTIVE DUTY FOR ANNUAL TRAINING, WHETHER
OR NOT THEIR ORDERS SPECIFY A PERIOD OF MORE THAN 30 DAYS. RESERVE
MEMBERS SERVING PERIODS OF INACTIVE DUTY TRAINING ARE NOT INCLUDED.
B. "RETIREMENT ELIGIBLE" IS DEFINED IN 10 U.S.C. 1448(D)(1)(A).
IT INCLUDES MEMBERS ELIGIBLE FOR RETIRED PAY; OR QUALIFIED FOR
RETIRED PAY EXCEPT THAT THE MEMBER HAS NOT APPLIED FOR OR BEEN
GRANTED THAT PAY, OR COMPLETED 20 YEARS OF ACTIVE SERVICE, BUT NOT
YET ELIGIBLE TO RETIRE AS A COMMISSIONED OFFICER BECAUSE THE MEMBER
HAS NOT YET COMPLETED 10 YEARS OF COMMISSIONED SERVICE.
C. "LOD" IS DEFINED IN SECTION 0223 OF REF D. SECTIONS
0223-0228 OF REF D, WHICH PREVIOUSLY APPLIED ONLY TO LOD
DETERMINATIONS IN INJURY OR DISEASE CASES, NOW APPLY TO LOD
DETERMINATIONS IN DEATH CASES. THUS, AN ACTIVE DUTY SERVICE
MEMBER'S DEATH IS PRESUMED TO BE IN THE LOD, AND THAT
PRESUMPTION CAN ONLY BE OVERCOME BY CLEAR AND CONVINCING EVIDENCE
THAT THE DEATH:
(1) WAS THE RESULT OF THE SERVICE MEMBER'S OWN INTENTIONAL
MISCONDUCT OR WILLFUL NEGLIGENCE, OR
(2) OCCURRED WHILE AVOIDING DUTY BY DESERTING, OR
(3) OCCURRED WHILE ABSENT WITHOUT LEAVE AND SUCH ABSENCE
MATERIALLY INTERFERED WITH THE PERFORMANCE OF REQUIRED MILITARY
DUTIES, OR
(4) OCCURRED WHILE CONFINED UNDER A SENTENCE OF
COURT-MARTIAL THAT INCLUDED AN UNREMITTED DISHONORABLE DISCHARGE, OR
(5) OCCURRED WHILE CONFINED UNDER A SENTENCE OF A CIVIL
COURT FOLLOWING A CONVICTION OF A FELONY OFFENSE.
D. "QUALIFIED SURVIVOR" IS DEFINED IN 10 U.S.C. 1448(D). IT
INCLUDES, IN THE FOLLOWING ORDER OF PRECEDENCE:
(1) A FORMER SPOUSE WITH A COURT ORDER REQUIRING SBP (10
U.S.C. 1448(D)(3))
(2) THE SURVIVING SPOUSE, OR
(3) THE SERVICE MEMBER'S DEPENDENT CHILD(REN). A COURT
ORDERED FORMER SPOUSE ANNUITY TAKES PRECEDENCE OVER ANY OTHER SBP
ANNUITY PAYABLE BASED ON THE SERVICE OF THE DECEASED MEMBER. A
MEMBER'S DEPENDENT CHILDREN QUALIFY TO RECEIVE AN ANNUITY WHEN A
FORMER SPOUSE ANNUITY DOES NOT APPLY AND THERE IS NO SURVIVING
SPOUSE OR THE SURVIVING SPOUSE LATER DIES, (10 U.S.C. 1448(D)(2)).
A MEMBER'S DEPENDENT CHILDREN ARE NOT QUALIFIED ANNUITANTS WHEN A
SURVIVING SPOUSE LOSES ENTITLEMENT TO AN ANNUITY AS A RESULT OF A
REMARRIAGE BEFORE AGE 55. NO OTHER PERSONS ARE QUALIFIED TO RECEIVE
BENEFITS UNDER THIS NEW PROVISION OF THE SBP.
6. PROCESS. PER REF B, LOD DETERMINATIONS ARE NOW REQUIRED IN ALL
ACTIVE DTTY DEATH CASES, RETROACTIVE TO 10 SEP 01. LOD
DETERMINATIONS IN DEATH CASES SHALL BE MADE AS FOLLOWS:
A. EACH ACTIVE DUTY DEATH SHALL BE SUBJECT TO, AT A
MINIMUM, A PRELIMINARY INQUIRY IN ACCORDANCE WITH REF D. THE
PRELIMINARY INQUIRY SHALL BE CONDUCTED BY THE COMMAND TO WHICH THE
DECEASED MEMBER WAS ATTACHED (OR THE GAINING COMMAND FOR SERVICE
MEMBERS WHO DIE IN TRANSIT). THE COMMAND CONDUCTING THE PRELIMINARY
INQUIRY IS SUFFICIENT TO BASE A LOD DETERMINATION OR WHETHER THERE
IS NEED FOR AN INVESTIGATION. IN MANY DEATH CASES, A PRELIMINARY
INQUIRY CONSISTING OF A BASIC LETTER REPORT ATTACHED TO A MEDICAL
RECORD ENTRY OR ACCIDENT REPORT WILL BE SUFFICIENT TO BASE A LOD
DETERMINATION. THE PERMISSIBLE FINDINGS ARE:
(1) IN THE LOD AND NOT DUE TO THE MEMBER'S OWN MISCONDUCT
(2) NOT IN THE LOD AND NOT DUE TO THE MEMBER'S OWN MISCONDUCT
OR
(3) NOT IN THE LOD AND DUE TO THE MEMBER'S OWN MISCONDUCT.
B. IF THE COMMAND COMPLETING THE PRELIMINARY INQUIRY OR
INVESTIGATION IS NOT A GENERAL COURT-MARTIAL CONVENING AUTHORITY
(GCMCA) WITH AN ASSIGNED STAFF JUDGE ADVOCATE (SJA), THE COMMAND
WILL FORWARD THE INQUIRY/INVESTIGATION TO THE FIRST GCMCA IN ITS
CHAIN OF COMMAND WITH AN ASSIGNED SJA. THE COMMAND WILL INCLUDE A
WRITTEN RECOMMENDATION CONCERNING THE LOD DETERMINATION.
C. THE GCMCA WITH AN ASSIGNED SJA IS THE COGNIZANT OFFICIAL FOR
MAKING THE FORMAL LOD DETERMINATION, SUBJECT TO A LIMITED REVIEW
PROCESS DESCRIBED IN PAR F BELOW. THE GCMCA SHALL MAKE THE LOD
DETERMINATION IN ACCORDANCE WITH THE GUIDANCE IN SECTIONS
0223-0228 OF REF D.
D. ADVERSE DETERMINATIONS. BEFORE MAKING A DETERMINATION THAT
AN ACTIVE DUTY DEATH WAS NOT IN THE LOD, THE GCMCA OR THEIR
SJA SHALL AFFORD A KNOWN POTENTIAL SBP BENEFICIARY THE OPPORTUNITY
TO REVIEW THE REPORT OF INVESTIGATION AND PROVIDE RELEVANT
INFORMATION TO THE GCMCA. A "KNOWN POTENTIAL SBP BENEFICIARY" IS
THE PERSON WHO WOULD OTHERWISE BE THE RECOGNIZED QUALIFIED SURVIVOR
IF A FAVORABLE DETERMINATION WERE MADE. THE MARINE CORPS SBP
PROGRAM MANAGER WILL PROVIDE ASSISTANCE FOR COMMANDS IN IDENTIFYING
POTENTIAL BENEFICIARIES. THE KNOWN POTENTIAL SBP BENEFICIARY SHALL
BE PROVIDED A COPY OF THE REPORT OF INVESTIGATION AND WILL BE
AFFORDED 30 CALENDAR DAYS FROM RECEIPT OF THE REPORT TO PROVIDE
ADDITIONAL INFORMATION TO THE GCMCA. IN AN ADVERSE DETERMINATION
CASE IN WHICH THERE IS NO KNOWN POTENTIAL SBP BENEFICIARY, THE GCMCA
SHALL MAKE THE LOD DETERMINATION FOLLOWING A REVIEW OF THE
INVESTIGATION BY THE SJA.
E. THE LOD DETERMINATION SHALL BE MADE IN WRITING BY THE GCMCA
AND FORWARDED TO:
HEADQUARTERS UNITED STATES MARINE CORPS
(MMSR-6)
3280 RUSSELL ROAD
QUANTICO, VA 22134-5103.
THE FORMAT FOR THE WRITTEN FINDINGS CAN BE FOUND AT THE SBP FACT
SHEET PAGE OF THE USMC INTERNET WEBSITE AT WWW.USMC.MIL, CLICK ON
"CAREER", "RETIRED", "SBP", AND "SBP FACT SHEETS".
F. FOR ADVERSE DETERMINATION CASES, THE GCMCA SHALL FORWARD A
COMPLETE COPY OF THE INVESTIGATION TO CMC (MMSR-6), WHERE IT WILL BE
REVIEWED BY, THE DEPUTY COMMANDANT FOR RESERVE AFFAIRS (DC, M&RA).
THE DC, M&RA SHALL REVIEW THE LOD DETERMINATION AND UNDERLYING
INVESTIGATION. THE DETERMINATION OF THE GCMCA SHALL BE SUSTAINED
UNLESS THE DC, M&RA DETERMINES THAT A SUBSTANTIAL ERROR
OCCURRED THAT COULD MATERIALLY AFFECT THE DETERMINATION. IN SUCH
CASES, THE DC, M&RA CAN MAKE A DIFFERENT DETERMINATION OR RETURN THE
CASE TO THE GCMCA FOR FURTHER INVESTIGATION. THE REVIEW AND
DETERMINATION OF THE DC, M&RA SHALL BE ADMINISTRATIVELY FINAL.
7. THIS MARADMIN DOES NOT CREATE OR VEST ANY RIGHT IN LAW OR EQUITY
IN ANY PERSON. LOD DETERMINATIONS IN DEATH CASES ARE NOT SUBJECT TO
JUDICIAL REVIEW.
8. JAGMAN CHANGES. THE JAGMAN CHANGES IMPLEMENTING REF A MAY BE
FOUND AT HTTP:WWW.JAG.NAVY.MIL/HTML/JAGVIRTUALLIBRAR.HTM.
9. POINT OF CONTACT (POC) FOR LEGAL ISSUES CONCERNING LOD
DETERMINATIONS IS THE LOCAL SJA. POC FOR SBP MATTERS IS CAPT R. J.
CORDERO (MMSR-6) AT DSN 278-9311/12, COMM (703) 784-9311/12 OR
1-800-336-4649, FAX (703) 784-9834.//