PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 March 2000                   
	DOCKET NUMBER:   AR1999030659

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 deceased spouse, a service member (SM), be corrected to show that he was retired for physical disability prior to his death.

3.  The applicant states that the SM’s physical evaluation board (PEB) was completed in April 1999 but he died before he could be retired.  His case should have been expedited as an imminent death case.

4.  The SM’s military records are not available.  The information contained herein was obtained from documents provided by the applicant.

5.  The SM was born on 26 December 1946.  After having had prior service in the Regular Army, he enlisted in the California Army National Guard on 2 July 1973.  He was voluntarily ordered to active duty in an active guard/reserve (AGR) status on 8 August 1983 and served out of Long Beach, CA.

6.  In January 1995, the SM was sent his notification of eligibility for retired pay at age 60 (his 20-year letter) but he apparently did not receive it and so never elected to participate in the Survivor Benefit Plan (SBP).

7.  On 11 March 1999, a Navy medical evaluation board (MEB) referred the SM to a PEB for a diagnosis of lung cancer.  The MEB noted that he had a terminal illness and his chances of being alive two years from that date would be less than 20 percent.  On 7 April 1999, a PEB conducted at Fort Lewis, WA found the FSM unfit for military duty due to lung cancer metastasized to his bones, liver, lymph nodes and adrenal gland and recommended his retirement with a 100 percent disability rating.  The proceedings noted that his lung cancer was a terminal illness with a mean survival of 6 to 10 months.  The FSM telephonically concurred in the findings and recommendation on 8 April 1999 and it was approved for the Secretary of the Army on this date.

8.  The SM was authorized 20 days permissive temporary duty (TDY) from 3 to 22 June 1999 and 13 days of transition leave from 23 June to 5 July 1999.  He was scheduled to be separated on 5 July 1999 and placed on the retired list on   6 July 1999.  He apparently had been counseled and requested he be allowed to take leave because he had previously cashed in the maximum amount (60 days) allowable.  He would have lost the leave and the attendant pay and allowances had he not taken the leave.  

9.  On 2 June 1999, the SM died.  The physician’s certification block indicated he had last been seen alive on 18 May 1999 when he apparently was released from Balboa Naval Hospital because there was nothing further the hospital could do for him.  He had completed over 20 years service creditable for active duty and over 27 years of service for pay.

10.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-14 states that disability separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the Secretary of the Army.  However, soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the Government.  Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and procedural sequences to that of all other soldiers.  No procedures will be circumvented or omitted.

11.  Public Law 92-245, 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.

12.  Public Law 101-189, enacted 29 November 1989, established the Supplemental SBP (SSBP) effective 1 October 1991.  The SSBP annuity (5, 10, 15 or 20 percent of full retired pay) would be paid in addition to the standard     35 percent-tier payment for surviving spouses age 62 and older. 

13.  The SBP Counselor Training Manual briefs that the SSBP is “A must for uninsurable members.”

CONCLUSIONS:

1.  The Board concludes there is no evidence of Government error in this case but that an injustice has occurred.

2.  Given the SM’s terminal illness and survival estimate, the Board concludes his PEB was conducted in an expeditious manner.  His retirement should then normally have occurred within 20 days of the date of the approval of his PEB.  It is unclear what caused the time lag between the approval on 8 April 1999 and the start of his permissive TDY on 3 June 1999 but the Board presumes it was due to the coordination required between the Physical Disability Agency in Washington, D. C., the PEB at Fort Lewis, WA, the PEB Liaison Officer at Fort Irwin, CA and the FSM at his home in Moreno Valley, CA.  This, plus his entitlement to and desire to use his accrued leave which he could not sell back resulted in his TDY not starting until 3 June 1999.  However, the Board believes that had the SM’s survival chances been better explained to him he would have elected to lose his leave and opt for an earlier retirement date.

3.  Unfortunately, the SM’s condition took a turn for the worse and the hospital sent him home on 18 May 1999.  His condition rapidly deteriorated and he died on 2 June 1999 while he was still on active duty, thus depriving the applicant of certain benefits.

4.  In view of the foregoing, it would be in the interest of justice to correct the SM’s records as recommended below.

RECOMMENDATION:

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

     a.  showing that the SM elected to participate in the SBP, spouse coverage, full base amount with SSBP based on 20 percent of his retired pay on 31 May 1999 and was placed on the retired list by reason of a 100 percent disability on   1 June 1999;

     b.  that any debt owed by the SM or the applicant regarding active duty pay and allowances resulting from the aforementioned corrections be waived; and

     c.  that the Defense Finance and Accounting Service collect any other monetary benefit given to the applicant by reason of the SM dying while on active duty as a valid debt.

BOARD VOTE:  

__rvo___  __mkp___  __vbc___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030659	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.10	
2.		
3.		
4.		
5.		
6.