PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR20020666635


         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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 deceased spouse, a former service member (FSM), be corrected to show he received his notification of eligibility for retired pay at age 60 (his 20-year letter).

3. The applicant states, in effect, that the FSM served proudly and capably for nearly 20 years prior to his tragic and unexpected death just three months before receiving his 20-year letter. As of his death in November 2001, he had already completed more than the 50 points required as a qualifying year for retirement and would have been eligible for retirement even if he had been unable to complete any further drills or training. It would be a gross injustice if his lifelong career of dedicated service to his country would not be recognized and rewarded with a retirement benefit for his family.

4. The FSM’s military records show that he was born on 10 August 1951. He enlisted in the U. S. Army Reserve on 25 February 1982 and served in an active status, in the Selected Reserve, until his death.

5. The applicant provides partial medical records pertaining to the FSM. They show that he was diagnosed with prostate cancer in March 2001. He was diagnosed as having type II diabetes apparently around early 2001. Medical records dated 18 June 2001 show that he had medication controlled diabetes. Medical records dated 26 September 2001 show that he had been referred to Orthopedics for a questionable metastasis to the right side of his pelvis from prostate cancer versus Paget’s disease. An osteosclerotic lesion of the right ilium, without significant findings consistent with Paget’s disease or metastatic disease, was diagnosed. He underwent a radical retropubic prostatectomy with bilateral pelvic lymph node dissection on 5 November 2001.

6. The FSM died on 17 November 2001 of cardiopulmonary collapse and pulmonary embolism. He had 19 years of qualifying service toward retirement (earned 50 or more points a retirement year) through retirement year ending date 24 February 2001. He earned 65 retirement points during retirement year beginning date 25 February 2001 prior to his death on 17 November 2001, 3 months and 8 days prior to attaining 20 years of qualifying service. At the time of his death he was serving in pay grade E-6.

7. The FSM’s unit technician informed the Board analyst that the FSM last took a periodic physical in October 2000 and they were not aware of any of his medical problems. There is no evidence to show that his medical conditions were the result of intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention as established by the Secretary of the Army.

8. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. Paragraph 8-6 states that, when a commander or other proper authority believes that a soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the soldier for medical evaluation according to Army Regulation 40-501.

9. Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-11 states that diabetes mellitus (type II), when proven to require hypoglycemic drugs in addition to restrictive diet for control, is a cause for referral to a medical evaluation board (MEB). Paragraph 3-42a states that a malignant neoplasm which is unresponsive to therapy or when the residuals of treatment are in themselves unfitting under other provisions of chapter 3 is a cause for referral to an MEB. Paragraph 3-42 states that a malignant neoplasm, when on evaluation for administrative separation or retirement the observation period subsequent to treatment is deemed inadequate in accordance with accepted medical principles, is a cause for referral to an MEB.

10. In August 1998, the Office of the Chief, Army Reserve (OCAR) established a process to refer soldiers of the Reserve Component who are pending separation for medical disqualification into the Disability Evaluation System. The process was designed to give the soldier with a non-duty related impairment the option of requesting a physical evaluation board (PEB) solely for the purpose of fitness determination but not a determination of eligibility for disability benefits. OCAR noted that it is Department of Defense policy that Reserve Component members pending separation for medical disqualification are entitled to a fitness determination by each Service’s PEB when requested by the soldier.

11. Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty). Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service. The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, U. S. Code, section 1331(a).

12. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

CONCLUSIONS:

1. There is no evidence of Government error in this case. It appears all of the FSM’s medical problems were discovered within 8 – 11 months of his death and after he had taken his last periodic physical. It appears he did not inform his unit of his medical problems.

2. The FSM required hypoglycemic drugs to control his diabetes, a condition that falls below acceptable medical retention standards. His prostate cancer may have also been cause for medical disqualification. He was within 3 months of being eligible for transfer to the Retired Reserve under normal criteria (20 qualifying years of service). Based upon the listed causes of his death, it appears his death may have been related to his radical prostatectomy surgery.

3. Had the FSM’s unit been informed about the nature and severity of his medical conditions, it appears reasonable to presume that he would have been evaluated for medical disqualification. It would be equitable to show that the FSM was consequently found to be medically disqualified and unfit for continued service in the Selected Reserve because of physical disability. Under Public Law 106-65, he then would have been eligible to receive retired pay at age 60.

4. It appears that the FSM’s physical disabilities were non-duty related impairments and were not the result of his intentional misconduct, willful neglect, or willful failure to comply with established standards and qualifications for retention.

5. In view of the foregoing, the FSM’s 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 was found to be medically unfit for retention due to type II diabetes and prostate cancer on 15 October 2001;

b. showing that the FSM elected transfer to the Retired Reserve as a result of being medically unfit for retention, to be effective 1 November 2001, and that he was provided with notification of eligibility to receive retired pay at age 60 (a 15-year letter) to that effect; and

c. showing that the FSM received his 15-year letter and elected to participate in the RCSBP for spouse only coverage, full base amount, option C.

2. That the applicant be paid the RCSBP annuity retroactive to 17 November 2001, the date of the FSM’s death, as a result of the above corrections.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__RJW__ ___LE___ __MVT__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond J. Wagner___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002066635
SUFFIX
RECON
DATE BOARDED	2002/08/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	135.00
2.	137.00
3.
4.
5.
6.