RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS: 02-00779
	                       INDEX CODE  108.10  108.05  137.04
	  (Deceased)	COUNSEL: None

	 	HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

Her late husband's military status at the time of his death be changed from active duty to placed on the Temporary Disability Retired List (TDRL) under the provisions of AFI 36-3212 with a 100% disability rating.

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APPLICANT CONTENDS THAT:

The Air Force was in the process of medically retiring her husband, who had been diagnosed with colon cancer with metastasis. On 19 Dec 01, he died suddenly before the retirement process was complete. She submits, in part, the following documentation:

	A supporting statement from a Department of Veterans Affairs (DVA) family practice physician indicates the member's case was in the final stages of his being officially medically retired at 100%. On the morning of 19 Dec 01, he specifically asked the oncologist if the member's deteriorating condition made his death imminent and was advised that death was not expected with 72 hours. As a result, expeditious processing was not warranted.  The doctor feels it would be unfair to deny the member's widow and 2 children the benefits of a medical retirement. 

	A supporting statement from the commander of the 57th Wing (57WG), indicates that the process to retire the member for medical reasons was essentially complete on 19 Dec 01; however, death occurred sooner than expected and the final package had not yet been submitted to HQ AFPC. Because of an administrative delay, the applicant and her family now face the loss of significant benefits to which they should be entitled by virtue of the member's retirement. The commander urges the Board to rectify the situation. 

	A supporting statement from the member's former commander asserts the paperwork would have been processed with a sense of urgency had he not been assured that death was not imminent 
within 72 hours. The member died within 2 hours after agreeing to accept the recommendation of the Informal Physical Evaluation Board (IPEB).

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The deceased member enlisted in the Regular Air Force on 14 Nov 84 and was ultimately promoted to the grade of technical sergeant with a date of rank of 1 Aug 01.  During the period in question, he was assigned to the 57th Component Repair Squadron (57CRS) at Nellis AFB, NV.

The applicant’s 41-year-old husband was admitted to the Nellis AFB hospital from 26-29 Nov 01.  According to a 29 Nov 01 Medical Evaluation Board (MEB) narrative summary, he had presented approximately 1½ weeks before complaining of low back pain. Despite medication, the pain increased and localized to his right upper quadrant. He also reported having blood in his stool two to three weeks earlier. Subsequent examination and evaluation in the emergency room revealed a very enlarged liver and multiple masses in the liver. Biopsy of the liver masses revealed poorly differentiated adenocarcinoma. A colonoscopy confirmed a mass in the sigmoid colon as the primary source of the cancer. A full body bone scan performed in the hospital suggested metastatic disease to the bones. The member was found not worldwide qualified due to advanced colon cancer, XXXXX classification D with metastatic disease to the liver. The prognosis was poor. 

On 30 Nov 01, the applicant’s late husband was placed on convalescent leave for the next 30 days. 

On 11 Dec 01, an MEB convened at Nellis AFB and recommended the member be placed before an Informal Physical Evaluation Board (IPEB). On 14 Dec 01, the member provided a Letter of Intent, indicating that he hoped to be returned to duty upon successful completion of his medical treatments.  Nellis AFB forwarded the case to HQ AFPC/DPPDS on 17 Dec 01.

The IPEB convened on 19 Dec 01, diagnosed the member with adenocarcinoma of the colon, Stage Duke D with metastasis, and recommended he be placed on the TDRL with reevaluation in one year (every 18 months is standard) at a compensable rating of 100%. 

Also on 19 Dec 01, the member, assisted by the applicant, indicated his agreement with the IPEB's findings and recommendations. The applicant also signed the AF Form 1180 
because she had assisted the member with his signature. Approximately two hours later, the member died. He is survived by the applicant and their two children. He had 17 years, one month and six days of active federal military service.

At the time of the member's death, his family was ineligible for Survivor Benefit Plan (SBP) coverage.  However, according to HQ AFPC/DPPD, on 28 Dec 01, the National Defense Authorization Act (NDAA) of 2002 was signed into law (Public Law 107-107).  The law, retroactive to 10 Sep 01, extends SBP eligibility to the spouse and dependent children of all active duty deaths classified in the line of duty, regardless of years of service (See Exhibit C).

Examiner’ Note: Pursuant to an inquiry by the AFBCMR Staff, HQ AFPC/DPPTR informally advised that the applicant’s SBP account was not yet established by DFAS-Denver, but confirmed that she is entitled to SBP coverage under the new criteria of active duty death authorized by PL 107-107. However, DPPTR explained certain advantages that are possible in retiring a member before death. Under the new active duty death SBP, the automatic coverage is for spouse and children (as contingent beneficiaries). Children will not receive payments unless the spouse dies. If the spouse remarries, the eligible children will not receive payments. If a member is retired, SBP coverage could be elected for the children only. According to DPPTR, this would optimize the family income (the spouse would get Dependency and Indemnity Compensation (DIC) from the Department of Veterans Affairs (DVA) and the children would get the SBP). The spouse would never get SBP under this election. Or, if retired, SBP coverage could include Supplemental SBP for the spouse. This would ensure her SBP at age 62 would not be less than 20% of gross retired pay. Until the spouse is 62, the DIC is very likely to be more than SBP and thus would be completely eliminated by DIC.  The money the spouse gets from SBP is always off-set by the money from DIC. 

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AIR FORCE EVALUATION:

HQ AFPC/DPPD asserts that the 11 Dec 01 MEB made no mention that death was imminent, which would have raised a flag that expeditious processing was necessary.  Processing records indicate that the DPPD Special Assistant on duty 19 Dec 01 was notified that the member had expired prior to finalization of his disability processing. At that time and in accordance with DODI 1332.38, all processing actions through the disability evaluation system (DES) ceased.  In the case in question, several mandatory actions for imminent death processing had not been completed prior to the member's death. DPPD was unable to find any wrongdoing or injustice on their part during the member's process through the DES which would have required his placement on the TDRL under the imminent disability process.  The Board may 
rightfully overturn DPPD's position; however, an alternate solution to this case would be to brief the widow in a recent law affecting SBP annuities.  Effective on 28 Dec 01 and retroactive to 10 Sep 01, Public Law 107-107 "closes the gap" on a long-standing disparity that allowed payment of an SBP annuity to families of retirement-eligible members who died on active duty, but not to families of non-retirement-eligible members who died on active duty. Denial of the requested relief is recommended.

A complete copy of the evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 15 Mar 02 for review and comment within 30 days.  As of this date, this office has received no response. 

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant granting the requested relief.  HQ AFPC/DPPD asserts that the deceased member’s disability case was appropriately processed and notes that Public Law 107-107 provides a means for obtaining SBP coverage for the applicant.  We do not pretend to be medical experts, but after reviewing the available evidence, it seems to us that imminent death processing may have been appropriate given the deceased member’s grave medical condition and rapid deterioration. In this regard, we note he was admitted to the hospital on 26 Nov 01 after experiencing low back pain less than two weeks earlier. He was diagnosed with advanced colon cancer, XXXX classification D, with metastatic disease to the liver. His prognosis was poor. He had jaundice and accumulated fluid in the abdominal cavity two weeks before his death. According to the statements provided, he took a turn for the worse on 18 Dec 01 and began to suffer multiple organ system failures. On 19 Dec 01, the IPEB recommended his placement on the TDRL with a rating of 100%. He and the applicant signed their concurrence with this finding and reasonably believed they would be protected with a medical retirement. However, the applicant’s husband died a few 
hours later before processing was finalized. Since the member was not medically retired, the family lost certain benefits. Given the deceased member’s poor prognosis less than a month after the onset of symptoms and the fulminant progression to death within days, it appears that imminent death processing should have been directed. Indeed, we have little doubt that is what the disability processing system would have done had it the benefit of hindsight that we now possess. Regardless, considering the particular circumstances of this sad case, we believe the preponderance of the evidence suggests that any doubt should be resolved in this applicant’s favor. She has already endured the sudden death of her 41-year old husband; we do not believe bureaucracy should exacerbate the family’s loss. Therefore, we recommend the late member be placed on the TDRL effective 18 December 2001. The applicant has also requested in telephone conversations with the AFBCMR Staff that her husband’s records be further corrected to show he elected, under the provisions of the SBP, child only coverage based on full retired pay. In view of HQ AFPC/DPPTR’s informal comments regarding medical retirement, SBP and DIC benefits, it appears this election would optimize the family’s income and we have no objection to this request. Therefore, we recommend the late member’s records be corrected as indicated below.    

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  On 17 December 2001, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnosis in his case was Adenocarcinoma of the Colon, Stage Duke D, with Metastasis, VASRD code 7343, disability rating 100%; that the disability may be permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in line of duty as a direct result of armed conflict.

	b. On 18 December 2001, under the provisions of the Survivor Benefit Plan (SBP), he elected child only coverage, based on full retired pay, and his spouse, Ruth Ortiz, concurred in his election.

	c. On 18 December 2001, he was released from active duty under the provisions of AFI 36-3212 and Title 10, United States Code, Section 1202, and his name was placed on the Temporary Disability Retirement List (TDRL).

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The following members of the Board considered this application in Executive Session on 9 July 2002 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended. The following documentary evidence relating to AFBCMR Docket Number 02-00779 was considered:

   Exhibit A.  DD Form 149, dated 21 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 11 Mar 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 15 Mar 02.

AFBCMR 02-00779

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to        , be corrected to show that:

	     a.  On 17 December 2001, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnosis in his case was Adenocarcinoma of the Colon, Stage Duke D, with Metastasis, VASRD code 7343, disability rating 100%; that the disability may be permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in line of duty as a direct result of armed conflict.

	     b. On 18 December 2001, under the provisions of the Survivor Benefit Plan (SBP), he elected child only coverage, based on full retired pay, and his spouse, Ruth Ortiz, concurred in his election.

	     c. On 18 December 2001, he was released from active duty under the provisions of AFI 36-3212 and Title 10, United States Code, Section 1202, and his name was placed on the Temporary Disability Retirement List (TDRL).