RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            06 MAY 2004                  
	DOCKET NUMBER:   AR2003093287

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald J. Weaver		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that the records of her late husband, a former servicemember (FSM) be corrected to show that he was retired because of physical disability prior to his death.  She also requests that his record be corrected to show that he was posthumously promoted to captain.

2.  The applicant states that disability processing was not possible because her husband's death was unexpected.  She states that the captain's board selected him for promotion in November 2002, but the board results were not published until after his death.  On 21 April 2004 the applicant's husband was posthumously promoted to captain effective on 8 January 2003, the date of his death.  The promotion issue will not be further addressed.   

a.  She states that the FSM requested an ENT (ear, nose, and throat) referral when he knew that he was developing a sinus infection; however the flight surgeon declined his request for two weeks.  During that time the infection progressed, he required immediate hospitalization to receive powerful antibiotics and steroids, and surgery was performed four days later.  This was his fourth sinus surgery.  His health quickly deteriorated after that, and at one point he was unable to walk, or use his arms, and suffered from debilitating headaches requiring massive amounts of narcotics for pain control.  His death could have been prevented had he received the ENT referral at the onset of the infection.

b.  After two subsequent hospitalizations, the FSM was medically evacuated to the National Naval Medical Center (NNMC) in Bethesda, Maryland. He saw numerous specialists, but none was able to determine the cause of his illness.  He was released before Christmas (2002), only to take a turn for the worse.  They [family] fought for him to be sent back to the NNMC.  At the end of his life her husband was suffering from uncontrollable body tremors, severe headaches, light sensitivity, weakness, and dizziness.  He developed a speech impediment so severe that he was only able to get out one or two words without stuttering.  Four days after being admitted to the NNMC for the second time he was found unresponsive and subsequently pronounced dead.

c.  In June she and members of his family went to Bethesda.  They were provided a copy of the code notes submitted by the doctor who pronounced him dead.  Those notes included a sentence which stated, "… no hope for meaningful recovery in the patient I terminated the code …" It implied that the doctor decided what was meaningful and what wasn't.  It was not his decision to make.  She could have been present during the code and before pronouncement if a timely and proper notification had been made.  She should have been the one to decide what was meaningful and what was not.

d.  She states that her husband was a highly decorated, admired, and respected officer.  She states that he left behind a mother, father, brother, wife, and a two-year-old daughter.  She states that when he was admitted to the hospital in New York, that she had his permission to "pull the plug" should something happen to him, only insisting that he be medically retired beforehand so that she and her daughter could be taken care of.    

3.  The applicant provides a copy of her husband's death certificate, code notes, chronology of events, a 7 March 2003 summary of an interview, and an autopsy examination report.  She provides copies of her husband's medical records.  She provides a copy of a promotion list indicating that her husband was selected for promotion to captain by the FY03 captain, Army competitive category promotion board.

CONSIDERATION OF EVIDENCE: 

1.  Other than some few records dated in 1988 and 1989 showing that the FSM was serving as an enlisted Soldier, his military records are unavailable to the Board.  The records available are those submitted by the applicant.  Documents show that the FSM was an active duty aviator first lieutenant, whose last assignment prior to his demise was at Fort Drum, New York.  

2.  The FSM's 1997-1998 medical records show that he was treated on numerous occasions for nasal congestion, chronic sinusitis, and sinus pressure, and that he underwent sinus surgery in November 1998.

3.  Outpatient records for 2000 and 2001 show he was treated on numerous occasions while stationed at Fort Rucker, for problems with his sinuses.

4.  Outpatient records for 2002 reflect his continued treatment for his sinus problems, to include an operation on 27 March 2002, and nasal endoscopy/debridements in March and April 2002.

5.  The FSM was seen and treated on numerous occasions at the Samaritan Medical Center in Watertown, New York in December 2002, underwent a colonoscopy, had numerous laboratory evaluations, and prescribed medications. He was discharged on 13 December 2002.  His discharge diagnoses included headaches with upper and lower extremity paresthesias, right occipital neuralgia, global body pain mainly in the joints, status post maxillary sinus surgery, diarrhea with abdominal pain resolved, adjustment disorder, thrombocytopenia, mild elevation liver function tests, and right upper lobe pneumonia.  Medical records show that he had a long history of sinus complaints and surgery, that he had surgery a year earlier in Watertown, and surgery of his maxillary sinuses on          26 November [2002].  

6.  Pharmacy records reflect the numerous types and amounts of medication that the FSM was prescribed.  

7.  The FSM was medically evacuated from the Samaritan Medical Center to NNMC at Bethesda on 13 December 2002.  His diagnoses upon admission at the NNMC included diarrhea, weakness, dehydration, and joint pain.

8.  The FSM underwent numerous treatments and consultations.  He was discharged on 22 December 2002 with a diagnosis of febrile illness with transient encephalopathy.

9.  The FSM returned to the NNMC on 4 January 2003, and admitted to the emergency room because of a possible CSF (cerebrospinal fluid) leak, an abnormal drainage of CSF from the subarchnoid space in the brain, with symptoms including headache, tremors, stuttering speech, night sweats, and difficulty with balance and memory.    

10.  Medical records show that the FSM underwent various tests, consultations, examinations, and treatment from 5 January 2003 until his death.  On 8 January 2003, at 0523 hours a corpsman found the FSM unresponsive with no pulse or respiration.  CPR was started immediately at 0524.  Code was called at the same time.  A medical team arrived at 0527.  Efforts to resuscitate the FSM were unsuccessful.  He was pronounced dead at 0615 hours.  Medical records show that the corpsman had last seen the FSM spontaneously breathing at 0445 hours, and that he was sleeping.  

11.  Clinical notes show that a code Blue was called at 0515.  Efforts to revive the FSM continued until the attending physician terminated the code at 0620 hours, indicating that there was no hope for meaningful recovery.

12.  An autopsy was performed.  The autopsy examination report shows that the FSM died of atherosclerotic cardiovascular disease complicated by organizing pneumonia and chronic medically prescribed narcotic use.  The manner of his death was natural.

13.  Department of Defense instruction then in effect states that “when competent medical authority determines that a service member’s death is expected within 72 hours, the member may be referred expeditiously into the DES (Disability Evaluation System).  To protect the interests of the Government and the service member, disposition shall be placement on the TDRL, provided all requirements under statute, law, and regulation are met.  In no case shall a service member be retired after his or her death or before completion of a required line of duty determination.”

14.  Information received from the Army’s Physical Disability Agency noted that in most cases when death is imminent, retirement for physical disability provides greater benefits than if death occurs on active duty.  The information from the Physical Disability Agency also notes that no regulatory or statutory requirements can be omitted or accomplished after the Soldier has died.  

15.  Under the normal imminent death processing procedures established by the Physical Disability Agency, expeditious processing is not warranted based solely 
on the diagnosis of a terminal illness or the risks associated with surgery.  Expeditious processing is warranted only when the attending physician makes the prognosis that a Soldier’s death is expected within 72 hours.  
 
DISCUSSION AND CONCLUSIONS:

Unfortunately, the applicant's request cannot be honored.  Her husband's death was unexpected.  His attending physicians apparently had no idea that his condition would result in his demise soon after his admission to the National Naval Medical Center on 4 January 2003; consequently, processing into the disability evaluation system was not initiated, as the applicant herself avers.  The applicant's husband could not be retired for physical disability prior to his death.  Physical disability retirement after his death cannot be accomplished.   

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__THD       __JEA __  __RJW __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		_Thomas D. Howard Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003093287	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040506	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.09	
3.		
4.		
5.		
6.