RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            02 MARCH 2004                  
	DOCKET NUMBER:   AR2004103548

	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. Fred N. Eichorn		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Robert L. Duecaster		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applicant requests, in effect, that the decision to place his name on the TDRL (Temporary Disability Retired List) be rescinded and that he be restored to an active duty status effective 10 June 2003 with restoration of all pay and entitlements.

2.  The applicant states, in effect, that his name was placed on the TDRL in June 2003 but he continued to receive pay and allowances of an active duty Soldier and was also promoted to pay grade E-5.  He states that restoration to active duty will preclude loss of his promotion and recoupment of his active duty pay.  He states that neither he, nor his father, were aware until 23 February 2004 that he had actually been retired.

3.  The applicant provides copies of documents associated with his imminent death processing and placement of his name on the TDRL along with a copy of his July 2003 promotion orders to pay grade E-5.

CONSIDERATION OF EVIDENCE: 

1.  Information available to the Board indicates that the applicant entered active duty in July 2000.  He was 18 years old at the time and trained as an infantryman.  At the time of his injury he was assigned to the 325th Infantry at Fort Bragg, North Carolina and deployed to Iraq.

2.  According to information provided by the Army’s Physical Disability Agency, the applicant sustained multiple wounds to his legs and pelvis and traumatic amputation of his left hand when unknown assailants fired a weapon, believed to be a rocket propelled grenade at the applicant and another Soldier on 10 June 2003 in Baghdad, Iraq.  He was admitted to the 407th Forward Support Medical Company and his attending physician noted that “death is imminent.” 

3.  As a result of the applicant’s grave medical condition the applicant was medically retired at 1320 hours EDST (Eastern Daylight Savings Time) on 
10 June 2003.  The documents placing the applicant’s name on the TDRL, including Medical Evaluation Board (MEB) Proceedings (Department of the Army Form 3947) were executed at the United States Army Physical Disability Agency located at Walter Reed Army Medical Center.  The MEB proceedings indicate that the applicant’s death was imminent within 72 hours.  The Physical Evaluation Board (PEB), convened at Walter Reed Army Medical Center, noted the applicant’s “traumatic amputation of the left hand and extensive lacerations to both femoral arteries and scrotal trauma with probable loss of both testicles secondary to a war wound.”  They also noted the applicant was “expected to expire within 72 hours.”  The PEB concluded that the applicant’s “medical condition prevents satisfactory performance of duty” and that because the condition “has not stabilized to the point that a permanent degree of severity can be determined” they recommended his name be placed on the TDRL.  The findings and recommendation of the PEB were approved and at 1321 hours EDST, on 10 June 2003, the applicant’s name was placed on the TDRL, in pay grade E-4, with a 100 percent disability rating.  

4.  As a result of the applicant’s placement on the TDRL he would be entitled to monthly compensation amounting to 75 percent of his retired base pay.  The retired base is computed on 1/36 of the total amount of monthly basic pay (which excludes allowances such as housing or rations) received for the high-36 months of active duty.  Without specific information regarding the applicant’s base pay over the past 36 months it is impossible to determine his exact retirement pay.  However, using just his current pay base of $1901.00, at most his retired pay would amount to no more than $1500.00. per month.

5.  A separation document and retirement orders were executed at Fort Bragg, North Carolina effecting the applicant’s retirement.  

6.  Notwithstanding the applicant’s retirement action, he was promoted to pay grade E-5 effective 1 August 2003.  The 82nd Soldier Support Battalion in Baghdad, Iraq issued promotion orders.  The applicant also continued to receive pay and allowances associated with his status as an active duty Soldier rather than being removed from the active rolls and transferred to the retired rolls where his receipt of retired pay would have commenced.  Documents available to the Board do not define the circumstance for this accounting error.  However, Leave and Earning Statements for the applicant do confirm that he is currently receiving full pay and allowances (amounting to $2314.26 of total entitlements – base pay, subsistence, housing, and parachute pay) in pay grade E-5.

7.  Until recent changes in the law, when death was imminent, retirement for physical disability provides greater benefits than if death occurred on active duty. At the time the applicant was placed on the TDRL, Department of Defense Instruction 1332.38 E3.P1.6.4 provided 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.”

8.  Under the normal imminent death processing procedures established by the Physical Disability Agency, expeditious processing was not warranted based solely on the diagnosis of a terminal illness or the risks associated with surgery.  Expeditious processing was warranted only when the attending physician makes the prognosis that a soldier’s death is expected within 72 hours.  In such cases, in simplified terms, the attending physician completed and signed the Narrative Summary (Special Form 502) and included the statement that death was expected within 72 hours.  The Deputy Commander Clinical Services, or his designated representative, ensured that the MEB was completed and approved.  The PEBLO (Physical Evaluation Board Liaison Officer) provided information to the PEB to complete certain items on the Department of the Army Form 199, and the PEB adjudicated the case and ultimately rendered findings and recommendation pertaining to the soldier’s medical conditions and disposition.  Once the PEBLO had received the results of the PEB, either the soldier or the next-of-kin’s concurrence was obtained regarding the findings and recommendation of the PEB.  If the soldier was deemed incompetent and the next-of-kin could not be located, the Medical Treatment Facility Commander could make an election on behalf of the soldier.

9.  Streamlined procedures for patients originating in the Southwest Asia Theater, as a result of combat or combat related operations, permitted the attending physician in the theater to confirm the soldier met the imminent death definition and then notify officials directly at the Walter Reed Army Medical Center.  

10.  Army Regulation 635-40 states that generally soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.  Soldiers who are receiving medical treatment until they have “attained optimum hospital improvement” and referred for disability processing continue to receive all pay and entitlements while undergoing such treatment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board does indicate that all parties involved in the expeditious processing of the applicant’s MEB and PEB did so with only the best intentions in mind and with the belief that what they were doing for the applicant was appropriate.  By all indications the applicant's condition was grave and his imminent death was expected.

2.  Apparently, only by virtue of the excellent medical care the applicant received and his remarkable progress in recovery was his imminent death averted.  

3.  Notwithstanding the applicant’s current medical situation, however, for unexplained reasons his name was not removed from the rolls of the active Army and he has continued to receive pay and allowances as an active duty Soldier rather than his disability retired pay as provided for when his name was placed on the TDRL.  This error has created a financial injustice for the Soldier that the imminent death procedures were established to avoid.  The applicant should not now be held financially responsible for recoupment of monies that he was paid in order to correct the overpayment of funds created by the difference between his retired pay and his active duty pay.  

4.  As such, in the interest of justice and equity, the circumstances warrant that the decision to place the applicant’s name on the TDRL be voided, by declaring his discharge from the Army on 10 July 2003 null and void, and reinstating the applicant on active duty in pay grade E-4, without any loss of creditable service and with restoration of all rights and privileges.

5.  By restoring the applicant to an active status his August 2003 promotion to pay grade E-5 would also remain valid.

BOARD VOTE:

__FNE __  __AAO __  __RLD__  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

a.  by voiding the 10 July 2003 PEB action placing the individual’s name on the TDRL;

b.  by declaring the applicant’s 10 July 2003 discharge from the Army null and void;

c.  by reinstating the applicant on active duty in pay grade E-4 without any loss of creditable service; and

d.  by confirming his August 2003 promotion to pay grade E-5.

		____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2004103548	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040302	
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.