GPSolo Magazine - January February 2005

Death On Active Duty

A client calls to say that a close family member has just died. He wants to know what to expect in the coming days and how to survive financially in the future. If the death had occurred in the local community as a result of an illness or a traffic accident, you would have the experience to answer these questions. But what if the death occurred while the client’s family member was serving on active duty in the armed forces in a distant location? This article is designed to acquaint you with the military casualty support system and the survivor benefits available for the family.

Notification of Primary Next of Kin

The military support provided to the next of kin exceeds that provided in most civilian communities. This support begins with the casualty notification and will continue beyond the funeral. A uniformed military service representative will have already personally notified the next of kin of the death. Each servicemember routinely updates his or her Record of Emergency Data (Department of Defense (DD) Form 93) that lists names and addresses for the servicemember’s spouse, children, and parents. This information serves as the basis for providing the casualty notification. The primary next of kin (PNOK) is the person most closely related to the casualty and will be the first person provided the casualty notice (unless the servicemember had designated an alternate person owing to the age or ill health of the PNOK).

Others listed on the DD Form 93 are considered secondary next of kin and will be notified after the PNOK has received notice. The order of precedence in determining the PNOK is: spouse, children, parents, in loco parentis, legal custodians, brothers and sisters, grandparents, and finally other relatives as determined by state law.

Within 24 hours of the official notification, the Casualty Assistance Officer (CAO) will contact the PNOK. The CAO, who may actually be an officer, warrant officer, or senior noncommissioned officer, provides a link between the PNOK and the military, assists throughout the funeral process, helps the PNOK apply for military benefits, and attempts to resolve other problems. While the role of the CAO is to assist the PNOK, the CAO will provide as much information and assistance as possible to other next of kin, such as parents or children by a prior marriage. The PNOK should expect to work with the CAO for several months.

Disposition of the Remains

One of the first concerns of the family will be the servicemember’s remains. The CAO will be able to explain to the family the process and timetable for returning the remains. The current spouse of the deceased servicemember is the individual authorized to direct disposition of the remains. If the deceased servicemember is not married, the priority to direct disposition will be: a designated blood relative, an adult child (prioritized by age), or a parent (prioritized by age). The military will transport the remains to the destination directed. A military escort accompanies the remains throughout this process.

If the death occurs within the United States, the military will arrange for the preparation of the remains for internment. If the death occurs outside the United States, the military will transport the remains to a military mortuary facility at Dover Air Force Base, Delaware, or Travis Air Force Base, California. The mortuary will prepare the remains for internment prior to transporting them to the final destination. Should the family desire to arrange private preparation and/or transportation of the remains, they can be reimbursed up to $1,750. The CAO will assist the PNOK in filing for reimbursement.

Often the family will request to view the remains. While the ultimate decision rests with the PNOK, it is always recommended that the funeral home director view the remains first and advise the family whether viewing is appropriate.

Burial Options

The CAO will advise the PNOK of burial options and the extent of reimbursement for internment expenses; however, the PNOK will make the final decision concerning internment. This includes the place of burial, the religious ceremony, and whether the funeral will be a military or civilian ceremony. If requested, the military ceremony may include full military honors. Full military honors include an officer or noncommissioned officer in charge, pallbearers, a firing squad, and a bugler. In either a military or civilian ceremony, an internment flag is provided to the PNOK. An additional flag will also be provided for the parents. If the parents are divorced, a flag is authorized for each parent.

Servicemembers who die on active duty are eligible for burial in Arlington National Cemetery, any other National Cemetery with available grave space, or any military installation cemetery with available grave space. There is no cost for a grave at these facilities. The PNOK may choose to have the funeral at a private cemetery. The government will provide some reimbursement for burial at a private cemetery. The current maximum reimbursement for internment expenses is $3,100. The CAO will assist the PNOK in filing for reimbursement.

Separately, the deceased servicemember’s unit will appoint a Summary Court. This individual is responsible for collecting all of the deceased’s personal property and forwarding it to the PNOK.

After the funeral, the CAO will continue to assist the PNOK in applying for benefits from the military, the Department of Veterans Affairs (VA), and Social Security. This will include scheduling appointments at the appropriate offices and accompanying the PNOK to the regional Social Security, Veterans Affairs, and military offices.

Survivor Benefits

It is important to review the range of survivor benefits provided by the military and other federal agencies. The attorney assisting the survivors may want to review the will and discuss these benefits with the surviving spouse before the spouse and CAO apply for any benefits. An increasing number of wills prepared by military Legal Assistance Attorneys contain provisions for a Disclaimer Funded Credit Shelter Bypass Trust. Depending upon the needs of the spouse and the structure of the estate, it may be appropriate to disclaim some of these benefits. If so, this disclaimer must be exercised within nine months of death and prior to accepting the benefit disclaimed.

The Servicemen’s Group Life Insurance (SGLI) (38 U.S.C. 1965-1976) may be one of the larger components of the estate. SGLI is a government insurance program that currently provides up to $250,000 of group term life insurance to members of the Armed Forces. It is administered by the Department of Veterans Affairs. Servicemembers are automatically covered to the maximum amount unless they specifically decline coverage or elect a lower limit of coverage. The servicemember will have designated the SGLI beneficiary on a properly completed, signed, and witnessed VA Form 8286. The beneficiary can apply for the benefits by sending a completed VA Form 8283 to OSGLI, 212 Washington Street, Newark, NJ 07102-2999. The OSGLI office may also be contacted at 800/419-1473.

There are two important and interrelated programs to provide continued financial benefits to dependents of deceased servicemembers: the Dependency and Indemnity Compensation (DIC) (38 U.S.C. 1301-1322) administered by the Veterans’ Administration, and the Survivor Benefit Plan (SBP) (10 U.S.C. 1447-1455) administered by the Department of Defense. DIC provides a monthly tax-free payment to authorized beneficiaries. Beneficiaries may include a surviving spouse, unmarried minor children, and certain financially dependent parents.

Spouses must have continually cohabitated from the date of the marriage. (Temporary separations or separations not the fault of the surviving spouse are disregarded.) DIC payments continue for the life of the surviving spouse or until the spouse remarries. Formerly, remarriage permanently terminated the DIC; however, effective October 1, 1998, a remarried surviving spouse can have the DIC reinstated upon the termination of the second marriage by death, divorce, or annulment (38 U.S.C. 1311). For servicemember deaths occurring prior to January 1, 1993, the monthly spousal payment depended upon the servicemember’s rank at the time of death. For deaths on or after January 1, 1993, a flat monthly rate is paid regardless of the servicemember’s rank. This rate is adjusted annually for inflation. For 2004, the spousal DIC was $967. Current rates and additional information can be found on the Department of Veterans Affairs website, www.vba.va.gov/bln/dependents/index.htm. .

Children are broadly defined for DIC eligibility and include adopted children, stepchildren living in the household, and children conceived outside of marriage if acknowledged or judicially decreed. They must be under age 18, or under age 23 if enrolled in school. If the children are in the custody of a surviving spouse who is receiving DIC, there will be an additional DIC payment; in 2004 the sum was $241 for each child under the age of 18. The 2004 rate for each eligible child between 18 and 23 was $205. The rate for each disabled child was $410. If the children do not reside with an eligible surviving spouse, the Department of Veterans Affairs website should be consulted. The site shows the maximum total child payment depending upon the total number of eligible children.

Parent eligibility is rare, and the rates will depend upon the parent’s income. The Department of Veterans Affairs website should be consulted for eligibility rules and payment rates.

In all cases, application for DIC is made to the Department of Veterans Affairs using the VA Form 21-534. The CAO will have these forms and will assist eligible beneficiaries in filing for DIC.

SBP is an annuity that provides for payment of a reduced amount of military retired pay to a beneficiary upon the death of the retiree. SBP is primarily designed to apply to the retired servicemember, who will pay a monthly premium for the annuity. Active duty soldiers who die in the line of duty are also covered without having to pay any premium. Historically, only retirement-eligible active duty servicemembers (those with more than 20 years of service) were covered; this was changed in the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107). Effective September 10, 2001, all active-duty servicemembers dying in the line of duty are covered by SBP.

Unlike the choice of beneficiaries afforded the retiree, the order of SBP beneficiaries for an active duty servicemember is set forth by law (10 U.S.C. 1448(d)). Absent a court order directing SBP coverage for a former spouse, the surviving spouse is the primary SBP beneficiary. Remarriage before the age of 55 will terminate the SBP annuity. This may be reinstated upon the termination of the second marriage by death, divorce, or annulment. Children will be the SBP beneficiaries if there is no former spouse order in effect or no surviving spouse, if the surviving spouse dies or becomes ineligible, or if the qualifying surviving spouse waives the SBP and elects coverage for the children.

SBP payments will be 55 percent of the “SBP base amount.” In the past, the SBP payment was reduced to 35 percent for the surviving spouse when the surviving spouse reached the age of 62. The National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) phases out this so-called Social Security Offset. It will be completely eliminated as of April 1, 2008. The SBP base amount for most servicemembers who die in the line of duty will be 75 percent of the average base pay for their high three years. For a servicemember who entered active duty prior to September 8, 1980, the SBP base amount will be 75 percent of final base pay. SBP payments are taxable to the recipient.

The DIC Offset is an important limitation upon the amount of SBP that a surviving spouse may receive. If the surviving spouse is eligible for both SBP and DIC, the SBP will be reduced by an amount equal to the spousal DIC. This offset does not apply in the case of child beneficiaries of SBP. Thus, depending upon the age of the children and the amount of SBP the spouse is entitled to (and perhaps the remarriage prospects of the surviving spouse), it may be in the best interest of the surviving spouse to waive the spousal SBP. In that case, the spouse would be eligible for the full spouse and child DIC payment, and the children would draw the full SBP annuity.

There are a number of other benefits that may be available to family members of a servicemember who dies while on active duty. There is a $12,000 tax-free death gratuity that will be paid by the Department of Defense (10 U.S.C. 1475-1780). The distribution of the death gratuity is defined by law and will be paid to the surviving spouse. If there is no surviving spouse, it is paid equally to the children. If there are no surviving spouse or children, it will be paid as specified by the servicemember in their Record of Emergency Data (DD Form 93).

The deceased servicemember will probably have some unpaid pay and allowances. There may also be payment for the value of unused accrued leave. These will be paid according to the designation made by the servicemember on their Record of Emergency Data (DD Form 93). Pay that was earned while in a combat zone, qualified hazardous duty area, area in direct support of a combat zone, or while hospitalized from injuries related to service in one of these areas is exempt from federal taxation. By extension, the value of accrued leave that was earned while the servicemember was stationed in such a zone is also tax exempt.

If the member died as a result of military or terrorist activities or in a combat zone, there may be additional federal income tax benefits. If the death occurred in a combat zone or as a result of wounds, disease, or other injury received in a combat zone, the servicemember’s income tax liability is forgiven for the tax year in which the death occurred and for any other tax year beginning after the date the servicemember entered a combat zone (26 U.S.C. 692(a)). If the death occurred as a result of wounds or injuries incurred in a terrorist or military action, the tax liability is forgiven for the year of death and for any earlier tax year beginning with the year before the wounds or injury occurred (26 U.S.C. 692(c)). Because these provisions are not mutually exclusive, both could be used in an appropriate case.

A surviving spouse and any children under 26 may be eligible for Dependents’ Educational Assistance (DEA) payments from the Department of Veterans Affairs (38 U.S.C. 3500-3566). The rules for eligibility are similar to those for the DIC, and the spouse and/or children must be enrolled in a school approved by the Department of Veterans Affairs. Surviving spouses may receive DIC and DEA; however, children must elect between DIC and DEA. Once DEA payments begin, a child may not revert to collecting DIC payments. A child is eligible for DIC until age 23 if they are in school, and they can elect DEA payments thereafter until they are 26.

The unremarried surviving spouse and unmarried minor children (under age 21, or under age 23 if enrolled in school) of a deceased servicemember are defined as military dependents (10 U.S.C. 1072) and are entitled to utilize the military commissary and exchange. They also remain eligible for military medical benefits and legal assistance.

When a servicemember dies on active duty, the military provides a strong and active support system to the surviving family members. While the range of benefits may not be familiar to a civilian, the civilian attorney assisting a client in this situation should work closely with the casualty assistance officer to understand the scope of the potential benefits. Similarly, the legal assistance attorney can be a valuable asset in helping to explain some of the unique military factors that may impact the client. Working with these military team members, the civilian attorney will have the necessary support to assist the survivors through these troubled times.

 

John T. Meixell is an attorney with the Army Legal Assistance Policy Division. His past responsibilities included the Army’s legal support to the survivors of the 248 soldiers killed in the Gander Air Crash. He can be reached at John.Meixell@hqda.army.mil.

 

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