LAW REVIEW 11104
Reserve and National Guard Personnel Who Die During a Drill Weekend
By Captain Samuel F. Wright, JAGC, USN (Ret.)
On December 2, 2011, Fox News reported on the tragic case of Captain Samson Luke, ARNG. On January 9-10, 2010 (Saturday and Sunday), Captain Luke was scheduled to perform at the Arkansas National Guard drill weekend. After a grueling Saturday performing his National Guard duties outside in freezing weather, Captain Luke died of a heart attack while at his home for the evening.
Captain Luke performed his National Guard inactive duty training (drills) at an armory that was located just 12 miles from his home. Accordingly, he was not entitled to reimbursement for a hotel room—that is limited to National Guard and Reserve members who perform drills at least 50 miles from home.
The Army initially appointed a casualty assistance officer to help the widow and four young children, and the Army arranged for the remains to be buried on January 18, 2010 (what would have been Captain Luke’s 35th birthday). Without notice, the Army pulled the casualty assistance officer and informed the family that it would not pay for the funeral and related expenses because Captain Luke was not in a duty status at the time of his death.
Section 1481 of title 10, United States Code, provides as follows concerning the circumstances under which a military service will provide for the recovery, care, and disposition of the remains of a deceased service member:
(D) remaining overnight immediately before the commencement of inactive-duty training, or remaining overnight, between successive periods of inactive-duty training, at or in the vicinity of the site of the inactive-duty training;
(iii) remaining overnight at or in the vicinity of that place before so serving, if the place is outside reasonable commuting distance from the member’s residence.
Under 37 U.S.C. 206(a), a member of the National Guard or Reserve is entitled to 1/30th of his or her monthly base pay (essentially, one day of base pay) for a period of at least two hours of approved training. Captain Luke probably performed a four-hour drill period on Saturday morning and another four-hour drill period on Saturday afternoon. At the end of his Saturday afternoon drill, he drove home, expecting to return early Sunday morning for the next drill period.
If Captain Luke’s drill site had been 120 miles from his home, instead of 12 miles, he likely would have spent Saturday night at a hotel or military quarters provided by the Army. His family would have been entitled to benefits under section 1481 if he had suffered a heart attack and died while in such temporary lodging. Similarly, the services would be due if he had died while driving to his drill or returning home from his drill or while performing the drill.
Each month, several National Guard and Reserve service members (not on active duty) die of natural causes, accidents, or homicide or suicide. Most of them die during the four weeks between drill weekends, but a few die during the drill weekend. Dying at home on Saturday night, between the Saturday drills and the Sunday drills, does not entitle the member to these section 1481 benefits, any more than dying midway between the January drill weekend and the February drill weekend would qualify. No matter how tragic and compelling the circumstances, the Army (or any federal agency) is not entitled to award benefits costing federal dollars without specific statutory authority. See Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).
The Fox News story focused on eligibility for the service of providing a funeral and disposition of the remains of the decedent. A much more important question is eligibility for the $100,000 death gratuity. Under 10 U.S.C. 1475(a)(2), the gratuity is payable to the family of a “Reserve of an armed force who dies while on inactive duty training.” Because Captain Luke was not performing inactive duty training at the moment of his death, the family is not eligible for this death gratuity.
Senator Mark Pryor of Arkansas is very much aware of and interested in this tragic situation. During the debate on the Senate version (S. 1867) of the National Defense Authorization Act (NDAA) for Fiscal Year 2012, he offered an amendment, which was adopted and became section 634 of S. 1867. This section would amend sections 1475(a)(3), 1478(a), and 1481(a)(2) of title 10, in order to accord both the $100,000 death gratuity and the recovery, care, and distribution of remains services to the survivors of a Reservist or National Guard member who died “while staying at the Reserve’s residence, when so authorized by proper authority, during the period of such inactive duty training or between successive days of inactive duty training.”
It is clear that Senator Pryor had Captain Luke’s situation in mind when he drafted this amendment. If this provision is enacted in its present form, the retroactive effective date will be January 1, 2010, just days before Captain Luke's death.
The House of Representatives passed its version of the 2012 NDAA (H.R. 1540) several months ago. The House bill has no provision similar to section 634 of the Senate version. A conference committee will resolve the differences between the two bills, so that identical language can be passed by both chambers and signed by the President. It is likely but not certain that Senator Pryor’s amendment will make it into the final version to be signed into law by the President. We will keep the readers informed of developments on this important issue.
 10 U.S.C. 1481(a)(1) and (2).
 I invite the reader’s attention to Law Review 1104 for a detailed discussion of the implications of the Richmond case. You can find more than 900 articles at www.servicemembers-lawcenter.org, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics.