PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 October 2001
         DOCKET NUMBER: AR2001060218


         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Mark D. Manning		Member
Mr. Jose A. Martinez		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.

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2. The applicant requests that the records of her mother, a deceased former service member (FSM), be corrected to show she retired for physical disability prior to her death and that she had enrolled in the Survivor Benefit Plan (SBP) prior to her death for insurable interest coverage (the applicant being the beneficiary).

3. The applicant states that the FSM was eligible to be placed on the Temporary Disability Retired List (TDRL) as of 5 May 2000 with a 100 percent disability rating. Although her life expectancy was very short, she was given the option of choosing a retirement date within 90 days of her eligibility. She chose a date and arranged for the SBP; however, she died prior to her scheduled retirement date.

4. The FSM’s military records show that, after having had prior service in the Regular Army, she entered the U. S. Army Reserve on 1 April 1982. She was voluntarily ordered to active duty in an active guard/reserve (AGR) status on 20 October 1986. A Record of Emergency Data, DD Form 93, dated 17 December 1999 indicated that the FSM was not married and had one daughter (the applicant).

5. In October 1999, the FSM was evaluated by a Navy Medical Evaluation Board (MEB) for status post incomplete resection for primary adenocarcinoma of the lung. An MRI obtained on 25 October 1999 revealed a large frontoparietal lesion on the left side of the brain, likely metastatic from her primary adenocarcinoma. Neurosurgical removal of the brain lesion was scheduled for 2 November 1999. The metastatic lesion indicated a very poor prognosis with the FSM’s life span estimated to be less than 6 months. Her case was referred to the Army Reviewing Authority for a fitness determination. The FSM agreed with the findings and recommendation of the MEB.

6. On 2 March 2000, the U. S. Army Physical Disability Agency (USAPDA) returned the case to McDonald Army Community Hospital, Fort Eustis, VA for an addendum with the results of the 2 November 1999 neurosurgery. The addendum was obtained, which indicated that a craniotomy had been performed and that an intrinsic metastatic tumor was discovered. A gross total resection of the tumor was obtained and she was placed on radiation therapy. She had a mild right hemiparesis but was otherwise doing well but her prognosis for full recovery was poor. The FSM agreed with the MEB’s addendum.

7. On 18 April 2000, a Physical Evaluation Board (PEB) found the applicant unfit for duty by reason of an incomplete resection of primary adenocarcinoma of the left lung with subsequent finding of a large frontoparietal lesion of the left side of the brain consistent with metastatic carcinoma and mild right hemiparesis. It was determined her condition had not stabilized to the point that a permanent degree of severity could be determined and it was recommended she be placed on the TDRL with a disability rating of 100 percent. The applicant concurred in the findings and recommendation and waived a formal hearing of her case.

8. The FSM was scheduled to be separated on 27 June 2000 and placed on the TDRL on 28 June 2000.

9. The Retirement Services Officer (RSO) at Fort Eustis, VA has informed the Board analyst that the FSM came into the retirement office with her daughter sometime in June 2000. They discussed the SBP and it appeared to the RSO that the FSM’s daughter was an eligible insurable interest beneficiary. The FSM informed the RSO that her daughter as her SBP beneficiary would be fine. After verifying with Army Retirement Services that the FSM’s daughter was an eligible SBP beneficiary, the RSO drafted the Data for Payment of Retired Personnel, DD Form 2656. The drafted DD Form 2656 named the applicant as the beneficiary for unpaid retired pay and as the SBP beneficiary under insurable interest coverage.

10. The FSM died on 11 June 2000 of metastatic lung cancer before she could sign the DD Form 2656.

11. Records at the Defense Finance and Accounting Service – Cleveland Center indicate that 60 of the FSM’s 77 accrued days of leave were cashed in effective 11 June 2000.

12. 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. (It appears that the USAPDA actually operates under a 90-day separation time frame which includes 20 days authorized permissive temporary duty.) However, soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the Government.

13. Public Law 92-425, 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. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a person with an insurable interest in the member.

CONCLUSIONS:

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

2. Given the FSM’s terminal illness, survival estimate, and the latest prognosis given (a poor prognosis for full recovery), the Board concludes that her PEB was conducted in an expeditious manner. Considering the FSM was entitled to take the accrued leave she could not sell back plus permissive TDY, in addition to taking the normal time to out-process, the time lag between the approval of her PEB on 5 May 2000 and her scheduled separation date of 27 June 2000 was not excessive.

3. Unfortunately, the FSM’s condition rapidly worsened and she died on 11 June 2000 while still on active duty, thus depriving the applicant of certain benefits.

4. In view of the foregoing, the FSM records should be corrected 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 FSM completed the DD Form 2656 on 1 June 2000 enrolling in the SBP for insurable interest coverage, full base amount with the applicant the SBP and the unpaid retired pay beneficiary;

b. that the FSM cashed in 60 days accrued leave on 9 June 2000; and

c. that the FSM was placed on the TDRL by reason of a 100 percent disability on 10 June 2000.

2. That any debt owed by the FSM or the applicant regarding active duty pay and allowances resulting from the above corrections be waived.

3. That the Defense Finance and Accounting Service collect any other monetary benefit given to the applicant by reason of the FSM dying while on active duty.

BOARD VOTE:

__jhl___ __mdm___ __jam___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Joann H. Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060218
SUFFIX
RECON
DATE BOARDED	20011011
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	137.02
3.
4.
5.
6.