RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04812
		
		 COUNSEL:  
		
		HEARING DESIRED:  NO




APPLICANT REQUESTS THAT:

1.  Her late husband’s military personnel records be corrected to reflect that on 14 Aug 13, he was permanently retired for physical disability with a combined compensable disability rating of 100 percent in accordance with the recommendations of the Informal Physical Evaluation Board (IPEB), which were released the day of  his passing.

2.  All associated benefits and entitlements be enacted as of 14 Aug 13 and that she be awarded the associated compensation.



APPLICANT CONTENDS THAT:

Her late husband had no intention of appealing the IPEB’s finding that he be retired with a 100 percent disability rating. His untimely death the afternoon of 14 Aug 13 prevented him from signing the AF Form 1180, Action On Physical Evaluation Board Findings and Recommended Disposition, accepting the findings and recommended disposition of the IPEB, and waiving the right to a formal PEB hearing.  The applicant signed the form as her deceased husband’s “next of kin” and, in accordance with DoDI 1332.38, Physical Disability Evaluation, para. E3.P1.4.4, the Air Force should honor her signature as the “next of kin,” on AF Form 1180, thus, allowing her late husband to retire with a 100 percent disability rating on 14 Aug 13.

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



STATEMENT OF FACTS:

According to the deceased former member’s military personnel records, he served as a member of the Air Force Reserve in the grade of lieutenant colonel (O-5) during the matter under review.

According to the documentation provided by the applicant, her deceased husband’s terminal condition (cancer) was diagnosed during an annual flight physical in May 12.  Since that time, his treatments and care (hospitalized for six weeks and underwent six operations for cancer) were by a civilian provider since he was not continued on orders.

On 29 Jul 13, AFRC/SGPA notified the deceased former member’s unit that he was no longer qualified to serve in the Air Force Reserve due to his medical condition.

On 14 Aug 13, the IPEB found the deceased former member was unfit for continued military service and recommended he be permanently retired for physical disability for his single cell carcinoma diagnosis, with a combined compensable disability rating of 100 percent.

According to a timeline of events prepared by the deceased former member’s Physical Evaluation Board Liaison Officer (PEBLO), because the deceased former member was unable to travel to the base to accept the findings of the IPEB on 14 Aug 13, the PEBLO made arrangements to visit the home of the deceased former member on 15 Aug 13 to obtain the deceased former member’s signature.

On 14 Aug 13, according to the documentation provided by the applicant, her husband unexpectedly passed away from complications related to a medication that was administered.  At the time of his death he was a reservist and was not on active duty orders. 

In accordance with DoDI 1332.38, E3.P1.4.4, Incompetent Members. When a Service member has been determined incompetent, his or her primary next of kin, or court appointed guardian shall be counseled and afforded the opportunity to assert the rights granted to the Service member, unless prohibited by law.  However, there was no documentation in the evidence of record to indicate the deceased former member was incompetent at the time of his passing.

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are included at Exhibits C, D, E, and F.




AIR FORCE EVALUATION:

AFPC/JA does not provide a recommendation.  In review of the case file they opine that the applicant has not established an error in this case, and they will leave it to the Board to determine whether the facts and circumstances constituted an injustice.  Regarding the applicant’s contention that her signature as the “next of kin” being valid according to DoDI 1332.38, para. E3.P1.4.4, the cited paragraph provides when a member has been determined incompetent, his primary “next of kin” or court appointed guardian shall be counseled and afforded the opportunity to assert the rights granted to the member, unless prohibited by law.  Similarly, AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, para. 1.11, also allows the “next of kin” to act on behalf of incompetent members.  The applicant has provided no evidence her deceased husband was incompetent prior to his death.  Additionally, accepting the IPEB’s recommendation does not automatically place a member in a medical disability retired status.  After signing the AF Form 1180, AFPC/DPFD must process the documents and set the date of separation.  The service member must live until the date of separation to be considered “retired.” 

A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/DPFD recommends denial, indicating there is no evidence of an error or injustice.  In order for the applicant’s deceased husband to have been on retired status prior to his passing, his date of separation would have had to be 13 Aug 13.  The IPEB’s findings were not released until 14 Aug 13.  No retirement orders could have been issued by this office prior to his passing. 

A complete copy of the AFPC/DPFD evaluation is at Exhibit D.

AFPC/DPFC does not provide a recommendation, but describes the impact on benefits and entitlements when the service member's death occurs within 120 days of retirement on the Temporary Disability Retired List (TDRL)/Permanent Disability Retired List (PDRL).  Survivors and eligible dependents would be assigned a Casualty Assistance Representative (CAR) to provide a briefing outlining possible benefits and entitlements: Death Gratuity (DG), Arrears of Pay (AOP), Dependency and Indemnity Compensation (DIC), Survivor Benefit Plan (SBP), and Service-members' Group Life Insurance (SGLI).

A complete copy of the AFPC/DPFC advisory is at Exhibit E. 

AFPC/DPSIZ does not provide a recommendation, but describes the differences in the applicable benefits and entitlements that apply when a Reserve member passes away while still a member of the Reserve, versus those that apply when a member passes away in a retired status.  Benefits are affected if the Reservist dies while serving (not on active duty) versus benefits if the Reservist died upon retirement.   

A complete copy of the AFPC/DPSIZ advisory is at Exhibit F.

ARPC/DPTT does not provide a recommendation but describes the differences in benefits and entitlements a Reserve member would receive if they passed away while serving in the Reserve (not on active duty) versus the benefits a retired Reserve member (awaiting retired pay at age 60) receives.  The difference is based on whether or not the Reserve member has 20 satisfactory years of service or not.  Less than 20 years, the only benefit would be SGLI if the member elected coverage.  If the member had 20 or more satisfactory years of service, the benefits would be SGLI if elected, Reserve Component Survivor Benefit Plan (RCSBP) if elected, military dependent ID card and TRICARE on the date of the deceased member's 60th birthday. 

A complete copy of the ARPC/DPTT advisory is at Exhibit G.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides corrections to and/or clarification on certain parts of the AFPCA/JA advisory.  Memorandums from her deceased husband’s commander and previous Operations Officer clarify the fact that he had no intentions of appealing the IPEB’s findings.  She reiterates the poor health condition of her deceased husband made him home-bound, unable to travel.  The applicant believes that Title 10 USC §1221, and Title 5 § 8301 provide authorities for retroactive retirement and specifying effective date of retirement.  She contends her deceased husband completed 20 satisfactory years of service vice the 19.54 years of service mentioned in the advisory, and that the difference in benefits (Death Gratuity, tax benefits associated with the Dependency and Indemnity Compensation, TRICARE, and potential Veteran’s Administration benefits, etc.) had the medical retirement paperwork been completed prior to her husband’s death are substantial.



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 an injustice.  The preponderance of evidence reflects there were no errors committed in the decedent’s processing through the Disability Evaluation System (DES), and that the applicant’s argument that she should have been able to sign for and accept the findings of the IPEB are without merit.  Nevertheless, the authority of this Board is not limited to simply whether or not appropriate rules and procedures were followed, but whether the sequence of events taken together renders the applicant the victim of an injustice or serves to shock the sense of justice.  Under this broader mandate, and after thoroughly reviewing the evidence in this case, we are convinced by the evidence before us that while there is no evidence of an error on the part of the Air Force, the sequence of events at play in this particular case have resulted in such an injustice and warrant corrective action.  In this respect, we note that it is certainly reasonable to conclude the deceased former member would not have appealed the IPEB’s determination that he be permanently disability retired with a compensable disability rating of 100 percent as such a finding was the best he could have hoped for.  In our view, because he would have undoubtedly accepted these findings, but was too ill to travel to the base to do so and passed away before the physical evaluation board liaison officer (PEBLO) could arrange to travel to his home the following day, we believe it is in the interest of justice to correct the deceased former member’s records to reflect that he accepted the findings of the IPEB and was retired for physical disability the day prior to his passing, thereby ensuring the decedent was in the status the Air Force had already determined he should be in the day prior to his passing.  Therefore, we recommend the decedent’s records be corrected as indicated below.



THE BOARD RECOMMENDS THAT:

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

	a.  On 12 Aug 13, the Informal Physical Evaluation Board (IPEB) found the deceased former member was unfit for continued military service and recommended he be permanently retired for physical disability for his single cell carcinoma diagnosis, with a combined compensable disability rating of 100 percent and the deceased former member accepted said findings.

	b.  On 13 Aug 13, the deceased former member was permanently retired for physical disability with a combined compensable disability rating of 100 percent.



The following members of the Board considered AFBCMR Docket Number BC-2013-04812 in Executive Session on 31 Jul 14, under the provisions of AFI 36-2603:

	

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 8 Sep 13, w/atchs.
	Exhibit B.  Deceased Former Member's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 14 Mar 14.
	Exhibit D.  Letter, AFPC/DPFD, dated 12 Nov 13.
	Exhibit E.  Letter, AFPC/DPFC, dated 13 Feb 14.
	Exhibit F.  Letter, AFPC/DPSIZ, dated 20 Feb 14.
	Exhibit G.  Letter, AFPC/DPTT, dated 4 Mar 14.
	Exhibit H.  Letter, SAF/MRBR, dated 22 May 14.
	Exhibit E.  Letter, Applicant, dated 18 Jun 14.

						

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