PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            30 June 1999                  
	DOCKET NUMBER:   AR1999016820

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		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, in effect, that the records of her spouse, a deceased former service member, be corrected to reflect that he was medically retired.  She states that her spouse died as a result of an accidental gunshot wound to the head but she has been unable to obtain any benefits because he was not “medically retired” prior to his death.

3.  Records available to the Board indicate the former service member entered active duty on 16 September 1986 and was promoted to pay grade E-5 effective 1 September 1989.

4.  According to information contained in a May 1991 line of duty investigation report, the former service member “was at his residence at 0325, on 26 March 1991 when he shot himself in the head with a 9mm hand gun while showing his wife…how to use the gun.”  The report notes the service member was “transported to Brooke Army Medical Center (BAMC) Emergency Room, admitted to Ward 411, where he remained unconscious and in critical condition until he expired at 0017, 27 March 1991.”  The line of duty investigation, which appears to have been initiated on 26 March 1991, was not finalized until May 1991, at which time a “no determination” finding was made because the soldier had expired.

5.  A medical summary sheet noted that a “CT scan” conducted at 0600 on 
26 March 1991 “demonstrated a transcerebral transventricular gunshot wound traveling from right to left with intraventricular blood and a very very small subdural hematoma.”  The former service member’s pupils were bilaterally fixed and dilated and that because of “high mortality, treatment was just supportive.”  The summary noted that 100% of patients in this category die or are vegetative.  “Over the next hour, the patient began to deteriorate….”

6.  His records contain copies of documents indicating that disability processing was begun on 26 March 1991 but never finalized.

7.  Information received from the Army’s Physical Disability Agency noted, in similar cases, that imminent death procedures are applied in the cases of Active and Reserve component soldiers when the Medical Treatment Facility determines that the soldier is expected to die within 72 hours from a medical condition incurred or aggravated in the line of duty.  To protect the interests of the soldier and the government should the soldier recover or improve, the soldier is placed on the Temporary Disability Retired List.  In most cases when death is imminent, retirement for physical disability provides greater benefits than if death occurs on active duty.  In particular survivors of soldiers who die on active duty are not entitled to SBP unless the soldier had at least 20 years of federal service. When a soldier pending retirement is mentally incompetent to make an SBP election, the Secretary of the Army makes the appropriate election on behalf of the soldier.  
8.  The information from the Physical Disability Retirement Agency also notes that no regulatory and statutory requirements are omitted or accomplished after the fact of death.  If a line of duty determination is required, retirement is not executed until the required level of determination (informal or formal) is approved and confirms an in-line-of-duty finding.

9.  The SBP is a plan to provide income protection to survivors of retirees or active duty soldiers with 20 or more years of service.  The SBP annuity amount is 55% of full retired pay which (with some exceptions) is payable until the surviving spouse reaches age 62 at which time the annuity amount is recomputed to 35% of the service member’s full retired pay.  Supplemental SBP, in the amount of 20%, is an additional option, which keeps the SBP annuity at 55% rather than the 35% that would occur without this election at age 62.

10.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

11.  Army Regulation 635-40 also states that the minimum payment is 50 percent of the monthly retired pay base for soldiers whose name is placed on the TDRL and who first entered active duty after 7 September 1980.

12.  The VA Schedule for Rating Disabilities (VASRD) Code 8009 provides for a disability rating of 100 percent for the first six months for brain hemorrhages.

CONCLUSIONS:

1.  It appears, based on the evidence that steps to “medically retire” the former service member were halted, appropriately, because he died before the process could be completed, because the formal line of duty had not been finalized.

2.  However, the Board notes that the evidence confirms that the former service member was in an imminent death situation following the 0600 CT scan and as such his name could have been placed on the TDRL with a 100 percent rating under VASRD Code 8009.

3.  Because the former service member would have been mentally incompetent to make an SBP election at the time his name was placed on the TDRL it would be appropriate for the Army to make an election on his behalf.  Under the circumstance an election of spouse coverage based on the former service member’s full-retired pay and an additional supplemental SBP election of 20% is most advantageous to the surviving spouse.
4.  By placing the service member’s name on the TDLR when he expired on 
27 March 1991 he would have been in a retired status and as such his spouse would have been entitled to survivor benefits.

5.  In view of the foregoing, and in the interest of justice, the former service member’s records should be corrected as recommended below.

RECOMMENDATION:

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

a.  by placing the former service member’s name on the TDRL effective 0600 hours on 26 March 1991 in pay grade E-5 under VSARD Code 8009 at 100 percent; and 

b.  by showing that the Army elected full SPB coverage for the surviving spouse, and the supplemental SBP in the amount of 20%, on behalf of the service member who was mentally incapable of making such an election at the time his name was placed on the TDRL.

2.  That so much as is in excess of the foregoing be denied.

BOARD VOTE:  

__gdp___  __aao___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999016820	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990630	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	( GRANT )	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.