PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           13 May 1999 
	DOCKET NUMBER:   AR1998012492

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Samuel Calderon		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his retirement for years of service be corrected to a medical retirement.  In addition, he requests that he be allowed to change his election of coverage under the Survivor Benefit Plan (SBP) and that his VA medical bills be paid by the Army.

3.  The applicant states that he was misdiagnosed as having an ulcer while he was on active duty.  When he retired he discovered that his problem was stomach cancer, not an ulcer, which required a total gastrectomy and ongoing chemotherapy, medical procedures which were provided by the VA.  He contends that if it were not for his misdiagnosis he would have been provided medical care at Army expense and he would have been medically retired, which would have allowed him to keep more of his retirement income [tax free], and would have influenced his SBP election.

4.  The applicant’s military records show that he entered on active duty as a commissioned officer on 12 January 1976, served as an air defense artillery/combat development officer, a short-range air defense artillery/electronic warfare officer, and a force development officer.  He was promoted to the rank of major.

5.  On 31 January 1996 he was honorably released from active duty for years of service and was placed on the retired list the following day.  In conjunction with his retirement he elected a reduced SBP of $421.00, although a maximum election (without a supplemental policy) would have been $2,205.00 for his rank and years of service.

6.  Records obtained from the VA show that the applicant was awarded a 100 percent disability rating from that Department for cancer of the stomach from 1 February 1996 to 1 June 1997, and a 20 percent disability rating thereafter.

7.  Army Regulation 40-3 provides for medical care at Army expense for military retirees.  Paragraph 14-3 states that Federal medical treatment facilities (MTF’s) may be used to supplement medical treatment at military MTF’s.  When medical care is authorized at a non-military Federal facility, that facility is paid for its services by the Army under the rates prescribed by the Office of Management and Budget for the applicable fiscal year (paragraph 4-14).

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election made by the member was irrevocable.  Members who are placed on the TDRL, and who have 20 or more active years of service, are required to make their election at the time of their placement on the TDRL, and immediately commence having their retired pay reduced by the amount of their SBP premiums.
9.  The cost of the survivor annuity for a spouse and the amount of the annuity are computed from the base amount selected. The base amount may be any amount from a minimum of $300.00 (or the full monthly retired pay if less than $300.00) up to full retired pay. The cost of the annuity is two and one-half percent of the base amount up to $300.00, plus 10 percent of the balance of the base amount over $300.00. The annuity payable is 55 percent of the base amount selected.

10.  Title 10, United States Code, Section 1201, provides for the placement of soldiers on the permanent disability retired list (PDRL) who incur a physical disability in the line of duty while serving on active duty over 30 days.  Section 1202 of this Code provides for the placement of soldiers on the TDRL if they meet the provisions of Section 1201, but the disability has not yet stabilized and/or it cannot be determined whether it is permanent. 

11.  In the processing of this case an advisory opinion was obtained from the Physical Disability Agency (PDA).  The PDA stated that a Physical Evaluation Board (PEB) would have found the applicant unfit for duty for adenocarcinoma of the stomach with total gastrectomy, VASRD code 7343, with placement on the Temporary Disability Retired List (TDRL) rated 100 percent disabled.  The PDA states that since there is insufficient medical records to ascertain the applicant’s present medical condition, that it recommends that his records be corrected to show that he was placed on the TDRL on 1 February 1996 rated 100 percent disabled, that he was retained on the TDRL from that date, and that he be immediately referred to an Medical Evaluation Board (MEB) and PEB to determine his final disposition.

12.  Also obtained in the processing of this case was an advisory opinion from the Army Review Boards Agency (ARBA) Medical Advisor who stated that the applicant was diagnosed as having stomach cancer and had a total gastrectomy in April 1996.  The ARBA Medical Advisor stated that the applicant could have been retained on active duty pending follow-up studies if his medical condition had been properly diagnosed, and would have then been entered into the physical disability system and retired for physical disability if that had occurred.

13.  The applicant was provided a copy of these advisory opinions and concurred with the findings and recommendations contained in them.

CONCLUSIONS:

1.  It is evident that the applicant had a grave medical illness at the time of his retirement.  The Board agrees with the PDA that if the applicant’s illness had been properly diagnosed while he was on active duty, he would have been medically boarded and medically retired.
2.  However, since the applicant’s medical condition at the time of his retirement was hardly stable, the PDA’s recommendation to show that he was placed on the TDRL, rated 100 percent disabled, is also accepted by the Board.  This correction will necessitate his being medically boarded immediately upon receipt of this directive and his TDRL status terminated by either placing him on the Permanent Disability Retired List (PDRL) or retiring him for years of service, as appropriate.

3.  If the applicant would have been medically retired, his medical care would then have been provided for by the Army, whether that treatment was obtained at a military or a non-military Government MTF.  Therefore, it would be in the interest of justice to authorize his medical care by the VA and to pay the VA for its services.  

4.  It is also reasonable to presume that if he had been properly diagnosed and medically retired, the coverage he elected under the SBP might have been significantly different.  However, if the Board is to allow the applicant to change his SBP election, it would only be reasonable to show that he had made that election at the time of his retirement.  Therefore, he will be required to pay for whatever SBP election he makes as a result of this correction from the date of his retirement on 1 February 1996.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a  showing that the action separating the individual concerned from active duty on 31 January 1996 due to sufficient service for retirement is void and of no force or effect;

b.  showing that on 31 January 1996 he was physically unfit to perform the duties of his office, grade, rank or rating by reason of adenocarcinoma of the stomach with total gastrectomy rated 100 percent disabled under VASRD code 7343; that the disability was incurred while he was entitled to receive basic pay as a member of the Regular Army; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; 

c.  showing that he was relieved from active duty on 31 January 1996 by reason of physical disability rated 100 percent disabled in accordance with the VASRD; and that, effective 1 February 1996, he was placed on the TDRL under the provisions of Title 10, United States Code, Section 1202, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, U.S. Code, Section 1372; 

d.  medically boarding him immediately upon receipt of this directive and terminating his status on the TDRL by either placing him on the Permanent Disability Retired List (PDRL) or retiring him for years of service, as appropriate.

	e.  giving to him the difference in retired pay this correction will require, from 1 February 1996;

	f.  giving him the option to change his coverage under the SBP and, if he chooses to change his SBP option, to deduct from the settlement made as a result of the other corrections in this case whatever monies become due, as calculated on that SBP election being made on 1 February 1996; and

	g.  showing that he was authorized to use a non-military MTF to receive medical care upon his placement on the TDRL, effective 1 February 1996, and that the VA be compensated for its services accordingly.

BOARD VOTE:  

_rvo_____  _sc_____  _klw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O'Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	A1998012492	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990513	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.