PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           21 MARCH 2002                  
	DOCKET NUMBER:   AR2002070489

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		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 son, a deceased former service member, be corrected to reflect that he was medically retired.  She states that due to a breakdown in communication, officials at the Patient Administration Division, Blanchfield Army Community Hospital were not notified that her son’s condition had deteriorated and that death was imminent.  She notes that had notification been made there would have been sufficient time to complete the imminent death processing and her son could have been retired prior to his death.

3.  Records available to the Board indicate the former service member entered active duty on 24 July 1996 and was promoted to pay grade E-5 effective 
1 July 1999.  His mother’s residence is listed as his home of record on his enlistment document and on his 2000 reenlistment contract.  The service member’s parents are divorced and his mother was designated as his sole Servicemen’s Group Life Insurance (SGLI) beneficiary.

4.  According to information contained in an 8 August 2000 Medical Evaluation Board (MEB) summary, which is confirmed in a police report and medical documents from Vanderbilt University Medical Center, the former service member “was found by [the] Nashville Police Department at approximately 0630 Sunday morning [6 August 2000] unresponsive.”  The police department indicated that they believe the former service member was attacked in a parking lot between 0130 and 0200 hours.  He sustained “traumatic brain injury with right temporal subdural hematoma plus multiple contusions to the brain.”

5.  Information contained in medical documents from the medical center indicate that the service member had “minimal response in the Emergency Department [and] responded only to pain….”  By 7 August medical authorities noted that the service member “had a very tumultuous course, however when he did present he was following commands and was purposeful.”  The statement also noted “it is very concerning that he is early into his injury and he has a chance for a markedly worsening picture.”  On 8 August medical officials noted the service member’s prognosis was “extremely grim” and “it is very unlikely that he will survive this process.”  

6.  After suffering several seizures the service member died at 0543 hours on 
10 August 2000.  His death certificate notes that the “immediate cause” of death was “blunt force injuries of the head.”  A 7 August 2000 line of duty determination concluded the service member’s injuries were “considered to have been incurred in line of duty.”

7.  His records contain copies of documents indicating that disability processing was begun on 8 August 2000 but never finalized.   A statement from the Physical Evaluation Board Liaison Officer (PEBLO) notes that an MEB was done as a “precautionary measure in case an imminent death case became necessary.”  However, at the time the MEB was completed “no statement regarding imminent death was provided to the PEB, so processing did not proceed.”  The PEBLO indicated in her statement that had notification been made that the service member’s condition had deteriorated, imminent death processing would have been finalized prior to his death.

8.  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.  

9.  The information from the Physical Disability Retirement Agency also notes that no regulatory and statutory requirements can be 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.

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.  The Survivor Benefit Plan, as originally enacted in 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, or to a “person with insurable interest” if the individual had no dependents.  If a 

person who is eligible to participate in the SBP is determined to be mentally incompetent, an election may be made on behalf of that person by the Secretary of the involved service.  In the case of imminent death, when a soldier is unmarried with no dependent children, since coverage can be for only one parent, the non-designated parent’s written consent is required prior to designating the other parent as the “person with insurable interest” beneficiary.  On 27 February 2002 the service member’s father concurred in designating the mother as the “person with insurable interest” beneficiary.

12.  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.

CONCLUSIONS:

1.  The Board notes that the evidence tends to confirm that the former service member was in critical condition following his arrival at Vanderbilt University Medical Center and, based on the comments from medical officials, was clearly in an imminent death situation when initial disability processing was begun on 
8 August 2000.  Had the service member been in a military hospital, or had his military chain of command been fully aware of his critical medical condition, actions would most probably have been taken to finalize imminent death processing prior to the service member’s death.

2.  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 the designation of the service member’s mother as the “person with insurable interest” beneficiary, based on the former service member’s full-retired pay would be appropriate, and in the interest of justice.

3.  By placing the service member’s name on the TDRL he would have been in a retired status when he expired on 10 August 2000 and as such his mother would have been entitled to survivor benefits.

4.  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  10 August 2000 in pay grade E-5 at 100 percent due to his multiple injuries from blunt force trauma; and 

b.  by showing that the Army elected full SBP coverage for the service member’s mother, 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:  

__JNS __  ___LDS _  __JTM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____ John N. Slone__  _
		        CHAIRPERSON

INDEX

CASE ID	AR2002070489	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020321	
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.	137.00	
3.		
4.		
5.		
6.