RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS: 02-00779
                             INDEX CODE 108.10  108.05  137.04
        (Deceased)     COUNSEL: None

            HEARING DESIRED: No

_________________________________________________________________


APPLICANT REQUESTS THAT:

Her late husband's military status at the time of his death be changed
from active duty to placed on the Temporary  Disability  Retired  List
(TDRL) under the provisions of AFI  36-3212  with  a  100%  disability
rating.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force was in the process of medically  retiring  her  husband,
who had been diagnosed with colon cancer with metastasis.  On  19  Dec
01, he died suddenly before the retirement process was  complete.  She
submits, in part, the following documentation:

      A supporting statement from a  Department  of  Veterans  Affairs
(DVA) family practice physician indicates the member's case was in the
final stages of his being officially medically retired at 100%. On the
morning of 19 Dec 01, he specifically  asked  the  oncologist  if  the
member's deteriorating condition  made  his  death  imminent  and  was
advised that death was not  expected  with  72  hours.  As  a  result,
expeditious processing was not warranted.  The doctor feels  it  would
be unfair to deny the member's widow and 2 children the benefits of  a
medical retirement.

      A supporting statement from  the  commander  of  the  57th  Wing
(57WG), indicates that the process to retire the  member  for  medical
reasons was essentially complete on 19 Dec 01; however, death occurred
sooner than expected and the final package had not yet been  submitted
to HQ AFPC. Because of an administrative delay, the applicant and  her
family now face the loss of significant benefits to which they  should
be entitled by virtue of the member's retirement. The commander  urges
the Board to rectify the situation.

      A  supporting  statement  from  the  member's  former  commander
asserts the paperwork would  have  been  processed  with  a  sense  of
urgency had he not been assured that death was not imminent
within 72 hours. The member died within  2  hours  after  agreeing  to
accept the recommendation of the Informal  Physical  Evaluation  Board
(IPEB).

The applicant's complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The deceased member enlisted in the Regular Air Force on 14 Nov 84 and
was ultimately promoted to the grade of technical sergeant with a date
of rank of 1 Aug 01.  During the period in question, he  was  assigned
to the 57th Component Repair Squadron (57CRS) at Nellis AFB, NV.

The applicant’s 41-year-old husband was admitted  to  the  Nellis  AFB
hospital from  26-29 Nov  01.   According  to  a  29  Nov  01  Medical
Evaluation  Board  (MEB)   narrative   summary,   he   had   presented
approximately 1½ weeks before complaining of low  back  pain.  Despite
medication, the pain  increased  and  localized  to  his  right  upper
quadrant. He also reported having blood in  his  stool  two  to  three
weeks earlier. Subsequent examination and evaluation in the  emergency
room revealed a very enlarged liver and multiple masses in the  liver.
Biopsy  of   the   liver   masses   revealed   poorly   differentiated
adenocarcinoma. A colonoscopy confirmed a mass in the sigmoid colon as
the primary source of the cancer. A full body bone scan  performed  in
the hospital suggested metastatic disease to the bones. The member was
found not worldwide qualified  due  to  advanced  colon  cancer,  Duke
classification D with metastatic disease to the liver.  The  prognosis
was poor.

On 30 Nov 01, the applicant’s late husband was placed on  convalescent
leave for the next 30 days.

On 11 Dec 01, an MEB convened at Nellis AFB and recommended the member
be placed before an Informal  Physical  Evaluation  Board  (IPEB).  On
14 Dec 01, the member provided a Letter of Intent, indicating that  he
hoped to be returned to duty upon successful completion of his medical
treatments.  Nellis AFB forwarded the case to HQ AFPC/DPPDS on 17  Dec
01.

The  IPEB  convened  on  19  Dec  01,  diagnosed   the   member   with
adenocarcinoma of  the  colon,  Stage  Duke  D  with  metastasis,  and
recommended he be placed on the TDRL with  reevaluation  in  one  year
(every 18 months is standard) at a compensable rating of 100%.

Also on 19 Dec 01, the member, assisted by  the  applicant,  indicated
his agreement  with  the  IPEB's  findings  and  recommendations.  The
applicant also signed the AF Form 1180
because she had assisted the member with his signature.  Approximately
two hours later, the member died. He is survived by the applicant  and
their two children. He had 17 years, one month and six days of  active
federal military service.

At the time of the member's  death,  his  family  was  ineligible  for
Survivor Benefit  Plan  (SBP)  coverage.   However,  according  to  HQ
AFPC/DPPD, on 28 Dec 01, the National Defense Authorization Act (NDAA)
of  2002  was  signed  into  law  (Public  Law  107-107).   The   law,
retroactive to 10 Sep 01, extends SBP eligibility to  the  spouse  and
dependent children of all active duty deaths classified in the line of
duty, regardless of years of service (See Exhibit C).

Examiner’ Note: Pursuant  to  an  inquiry  by  the  AFBCMR  Staff,  HQ
AFPC/DPPTR informally advised that the applicant’s SBP account was not
yet established by DFAS-Denver, but confirmed that she is entitled  to
SBP coverage under the new criteria of active duty death authorized by
PL 107-107. However,  DPPTR  explained  certain  advantages  that  are
possible in retiring a member before death. Under the new active  duty
death SBP, the automatic coverage  is  for  spouse  and  children  (as
contingent beneficiaries). Children will not receive  payments  unless
the spouse dies. If the spouse remarries, the eligible  children  will
not receive payments. If a member is retired, SBP  coverage  could  be
elected for the children only. According to DPPTR, this would optimize
the family income (the  spouse  would  get  Dependency  and  Indemnity
Compensation (DIC) from the Department of Veterans Affairs  (DVA)  and
the children would get the SBP). The spouse would never get SBP  under
this election. Or, if retired, SBP coverage could include Supplemental
SBP for the spouse. This would ensure her SBP at age 62 would  not  be
less than 20% of gross retired pay. Until the spouse is 62, the DIC is
very likely  to  be  more  than  SBP  and  thus  would  be  completely
eliminated by DIC.  The money the spouse gets from SBP is always  off-
set by the money from DIC.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD asserts that the 11 Dec 01 MEB made no mention that death
was  imminent,  which  would  have  raised  a  flag  that  expeditious
processing was necessary.  Processing records indicate that  the  DPPD
Special Assistant on duty 19 Dec 01 was notified that the  member  had
expired prior to finalization of his disability  processing.  At  that
time and in accordance  with  DODI  1332.38,  all  processing  actions
through the disability evaluation system (DES) ceased.  In the case in
question, several mandatory actions for imminent death processing  had
not been completed prior to the member's death.  DPPD  was  unable  to
find any wrongdoing or injustice on their  part  during  the  member's
process through the DES which would have required his placement on the
TDRL under the imminent disability process.  The Board may
rightfully overturn DPPD's position; however, an alternate solution to
this case would be to brief the widow in a recent  law  affecting  SBP
annuities.  Effective on 28 Dec 01  and  retroactive  to  10  Sep  01,
Public Law 107-107 "closes the gap" on a long-standing disparity  that
allowed payment of an SBP annuity to families  of  retirement-eligible
members who died on active duty, but not to families of non-retirement-
eligible members who died on active  duty.  Denial  of  the  requested
relief is recommended.

A complete copy of the evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 15 Mar 02 for review and comment within 30 days.   As  of
this date, this office has received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice to warrant granting the  requested
relief.  HQ AFPC/DPPD asserts that the  deceased  member’s  disability
case was appropriately processed and notes  that  Public  Law  107-107
provides a means for obtaining SBP coverage for the applicant.  We  do
not pretend to be medical experts, but after reviewing  the  available
evidence, it seems to us that imminent death processing may have  been
appropriate given the deceased member’s grave  medical  condition  and
rapid deterioration. In this regard, we note he was  admitted  to  the
hospital on 26 Nov 01 after experiencing low back pain less  than  two
weeks earlier. He was  diagnosed  with  advanced  colon  cancer,  Duke
classification D, with metastatic disease to the liver. His  prognosis
was poor. He had jaundice  and  accumulated  fluid  in  the  abdominal
cavity two  weeks  before  his  death.  According  to  the  statements
provided, he took a turn for the worse on  18  Dec  01  and  began  to
suffer multiple  organ  system  failures.  On  19  Dec  01,  the  IPEB
recommended his placement on the TDRL with a rating of  100%.  He  and
the  applicant  signed  their  concurrence  with  this   finding   and
reasonably believed they would be protected with a medical retirement.
However, the applicant’s husband died a few
hours later before processing was finalized. Since the member was  not
medically  retired,  the  family  lost  certain  benefits.  Given  the
deceased member’s poor prognosis less than a month after the onset  of
symptoms and the  fulminant  progression  to  death  within  days,  it
appears that imminent death  processing  should  have  been  directed.
Indeed, we have little doubt that is what  the  disability  processing
system would have done had it the benefit of  hindsight  that  we  now
possess. Regardless, considering the particular circumstances of  this
sad case, we believe the preponderance of the evidence  suggests  that
any doubt should be  resolved  in  this  applicant’s  favor.  She  has
already endured the sudden death of her 41-year old husband; we do not
believe bureaucracy should exacerbate the family’s loss. Therefore, we
recommend the late member be placed on the TDRL effective  18 December
2001. The applicant has also requested in telephone conversations with
the AFBCMR Staff that her husband’s records be  further  corrected  to
show he elected, under the provisions of the SBP, child only  coverage
based on full  retired  pay.  In  view  of  HQ  AFPC/DPPTR’s  informal
comments regarding  medical  retirement,  SBP  and  DIC  benefits,  it
appears this election would optimize the family’s income and  we  have
no objection  to  this  request.  Therefore,  we  recommend  the  late
member’s records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  On 17 December 2001, he  was  found  unfit  to  perform  the
duties of his office, rank, grade or  rating  by  reason  of  physical
disability incurred while entitled to  receive  basic  pay;  that  the
diagnosis in his case was Adenocarcinoma of the Colon, Stage  Duke  D,
with Metastasis, VASRD code 7343, disability  rating  100%;  that  the
disability may be permanent;  that  the  disability  was  not  due  to
intentional misconduct or willful neglect; that the disability was not
incurred during  a  period  of  unauthorized  absence;  and  that  the
disability was not received in line of duty  as  a  direct  result  of
armed conflict.

      b.  On 18 December 2001, under the provisions  of  the  Survivor
Benefit Plan (SBP), he elected child  only  coverage,  based  on  full
retired pay, and his spouse, Ruth Ortiz, concurred in his election.

      c.  On 18 December 2001, he was released from active duty  under
the provisions of AFI  36-3212  and  Title  10,  United  States  Code,
Section 1202, and his name was  placed  on  the  Temporary  Disability
Retirement List (TDRL).

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 9 July 2002 under the provisions of AFI 36-2603:

                                  Mr. Vaughn E. Schlunz, Panel Chair
                                  Mr. Michael V. Barbino, Member
                                  Mr. Michael J. Maglio, Member

All  members  voted  to  correct  the  records,  as  recommended.  The
following documentary evidence relating to AFBCMR  Docket  Number  02-
00779 was considered:

   Exhibit A.  DD Form 149, dated 21 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 11 Mar 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 15 Mar 02.




                                   VAUGHN E. SCHLUZ
                                   Panel Chair




AFBCMR 02-00779


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to        , be corrected to show that:

           a.  On 17 December 2001, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability incurred while entitled to receive basic pay; that the
diagnosis in his case was Adenocarcinoma of the Colon, Stage Duke D,
with Metastasis, VASRD code 7343, disability rating 100%; that the
disability may be permanent; that the disability was not due to
intentional misconduct or willful neglect; that the disability was not
incurred during a period of unauthorized absence; and that the
disability was not received in line of duty as a direct result of
armed conflict.

           b.  On 18 December 2001, under the provisions of the
Survivor Benefit Plan (SBP), he elected child only coverage, based on
full retired pay, and his spouse, Ruth Ortiz, concurred in his
election.

           c.  On 18 December 2001, he was released from active duty
under the provisions of AFI 36-3212 and Title 10, United States Code,
Section 1202, and his name was placed on the Temporary Disability
Retirement List (TDRL).





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency