ADMINISTRATIVE MESSAGE
 
ROUTINE       
 
R 171305Z MAR 03 ZYB MIN PSN 958560J33
 
FM CNO WASHINGTON DC//N1//
 
TO NAVADMIN
 
UNCLAS //N05800//
NAVADMIN 065/03
 
MSGID/GENADMIN/CNO WASHINGTON DC/-/MAR//
 
SUBJ/SURVIVOR BENEFIT PLAN (SBP) ANNUITIES WHEN AN ACTIVE DUTY
MEMBER DIES IN THE THE LINE OF DUTY (LOD)//
 
REF/A/DOC/NDAA2002/28DEC2001//
 
REF/B/DOC/OSD/02MAY2002//
 
REF/C/DOC/JAGMAN/20AUG2001//
 
NARR/REF A IS SECTION 642, NATIONAL DEFENSE AUTHORIZATION ACT OF
FISCAL YEAR 2002, PUBLIC LAW 107-107, DECEMBER 28, 2001, WHICH
EXPANDED BENEFITS AND COVERAGE UNDER THE UNIFORMED SERVICES SURVIVOR
BENEFIT PLAN (SBP).  REF B IS OSD (FMP) MEMORANDUM "SURVIVOR BENEFIT
PLAN (SBP) ANNUITIES WHEN MEMBER DIES ON ACTIVE DUTY."  REF C IS
MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN), WHICH CONTAINS DON
REGULATIONS FOR ADMINISTRATIVE INVESTIGATIONS AND LINE OF DUTY
DETERMINATIONS.//
 
RMKS/1.  THIS NAVADMIN ESTABLISHES POLICY, PROCEDURES, AND
RESPONSIBILITIES FOR MAKING LINE OF DUTY DETERMINATIONS WHEN AN
ACTIVE-DUTY SERVICE MEMBER OF THE USN DIES.
 
2.  REF A MODIFIED THE SURVIVOR BENEFIT PLAN (SBP) PROGRAM IN TWO
IMPORTANT WAYS:  FIRST, SBP BENEFITS ARE NOW PAYABLE TO A QUALIFIED
SURVIVOR WHEN AN ACTIVE DUTY SERVICE MEMBER DIES IN THE LINE OF
DUTY, REGARDLESS OF WHETHER THE SERVICE MEMBER WAS RETIREMENT
ELIGIBLE AT THE TIME OF DEATH.  SECOND, THE SBP ANNUITY PAYABLE TO A
QUALIFIED SURVIVOR (IF THE ACTIVE DUTY SERVICE MEMBER DIES IN THE
LINE OF DUTY) WAS INCREASED.
 
3.  SBP ANNUITIES ARE CALCULATED AS A PERCENTAGE OF THE SBP BASE
AMOUNT.  NORMALLY, THE ANNUITY IS EITHER 55 OR 35 PERCENT OF THE SBP
BASE AMOUNT.  WHEN AN ACTIVE DUTY DEATH IS DETERMINED TO BE IN THE
LINE OF DUTY, 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 LINE OF DUTY, 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 LINE OF DUTY.  FOR
CASES DETERMINED TO BE NOT IN THE LINE OF DUTY, 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.  "LINE OF DUTY" IS DEFINED IN SECTION 0223 OF REFERENCE C.
SECTIONS 0223-0228 OF REFERENCE C, WHICH PREVIOUSLY APPLIED ONLY TO
LINE OF DUTY DETERMINATIONS IN INJURY OR DISEASE CASES, NOW APPLY TO
LINE OF DUTY DETERMINATIONS IN DEATH CASES.  THUS, AN ACTIVE DUTY
SERVICE MEMBER'S DEATH IS PRESUMED TO BE IN THE LINE OF DUTY, 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, LINE OF DUTY DETERMINATIONS ARE NOW REQUIRED
IN ALL ACTIVE DUTY DEATH CASES, RETROACTIVE TO 10 SEP 01.  LINE OF
DUTY 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 C.  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, OR
HIGHER AUTHORITY, SHALL DECIDE WHETHER THE PRELIMINARY INQUIRY IS
SUFFICIENT TO BASE A LINE OF DUTY DETERMINATION OR WHETHER THERE IS
NEED FOR A FULL 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 LINE OF
DUTY DETERMINATION.  THE PERMISSIBLE FINDINGS ARE (1) IN THE LINE OF
DUTY AND NOT DUE TO THE MEMBER'S OWN MISCONDUCT (2) NOT IN THE LINE
OF DUTY AND NOT DUE TO THE MEMBER'S OWN MISCONDUCT OR (3) NOT IN
LINE OF DUTY 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 LINE OF DUTY 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 PARA F BELOW.  THE GCMCA SHALL MAKE THE LINE OF
DUTY DETERMINATION IN ACCORDANCE WITH THE GUIDANCE IN SECTIONS
0223-0228 OF REF C.
    D.  ADVERSE DETERMINATIONS.  BEFORE MAKING A DETERMINATION THAT
AN ACTIVE DUTY DEATH WAS NOT IN THE LINE OF DUTY, 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 NAVY SBP PROGRAM
MANAGERS WILL PROVIDE ASSISTANCE FOR NAVY COMMANDS IN IDENTIFYING
POTENTIAL BENEFICIARIES.  ORDINARILY, THE KNOWN POTENTIAL SBP
BENEFICIARY SHALL BE PROVIDED 30 CALENDAR DAYS FROM RECEIPT OF THE
REPORT OF INVESTIGATION TO PROVIDE INFORMATION TO THE GCMCA.  IN AN
ADVERSE DETERMINATION CASE IN WHICH THERE IS NO KNOWN POTENTIAL SBP
BENEFICIARY, THE GCMCA SHALL MAKE THE LINE OF DUTY 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 COMMANDER, NAVY PERSONNEL COMMAND (PERS-62), 5720
INTEGRITY DRIVE, MILLINGTON, TN 38055-6220 OR HQMC (MMSR-6).
    F.  FOR ADVERSE DETERMINATION CASES, THE GCMCA SHALL FORWARD A
COMPLETE COPY OF THE INVESTIGATION TO NAVPERSCOM (PERS-62).
(PERS-62) WILL FORWARD TO CNP FOR REVIEW.  CNP SHALL REVIEW THE LOD
DETERMINATION AND UNDERLYING INVESTIGATION.  THE DETERMINATION OF
THE GCMCA SHALL BE SUSTAINED UNLESS CNP DETERMINES THAT A
SUBSTANTIAL ERROR OCCURRED THAT COULD MATERIALLY AFFECT THE
DETERMINATION.  IN SUCH CASES, CNP CAN MAKE A DIFFERENT
DETERMINATION OR RETURN THE CASE TO THE GCMCA FOR FURTHER
INVESTIGATION.  THE REVIEW AND DETERMINATION OF THE CNP SHALL BE
ADMINISTRATIVELY FINAL.
 
7.  THIS NAVADMIN 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/JAGVIRTUALLIBRARY.HTM.
 
9.  POINT OF CONTACT FOR LEGAL ISSUES CONCERNING LOD DETERMINATIONS
SHOULD BE ADDRESSED TO THE LOCAL SJA OR OJAG CODE-15.  POC FOR SBP
MATTERS IS MR. BASIL COLEMAN AT (901) 874-4304/DSN 882,
1-800-255-8950, EXT 44304 OR FAX (901) 874-2611/DSN 882.
 
10.  RELEASED BY VADM G. L. HOEWING, N1.//
 
BT
NNNN