PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002069796


         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. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he received a 15-year letter due to being medically unfit for retention and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) at that time.

3. The applicant states that the FSM had over 18 years of service and was not properly taken care of. He had a long, serious illness preventing him from attending drill or working. He always took care of her financially and she knows that he would have enrolled in the RCSBP.

4. The FSM’s military records show that he was born on 27 June 1949. He initially enlisted in the Regular Army in September 1967, he was released to the U. S. Army Reserve in September 1970, and he enlisted in the Army National Guard (ARNG) in February 1982. He married the applicant on 25 June 1984. On 8 January 1995, he extended his term of service making his new expiration term of service 12 February 2001.

5. The FSM's Noncommissioned Officer Evaluation Report (NCOER) for the period ending November 1997 notes that he was excused from taking the Army Physical Fitness Test because he was hospitalized for an operation.

6. The FSM's ARNG Retirement Points History Statement shows that the last year he earned any points other than membership points was retirement year ending 12 February 1998.

7. Progress Notes from the Interfaith Health Clinic dated 19 February 1998 show that the FSM "might be considered for a (heart) transplant in the future." A History and Physical Examination document from the University of Tennessee Memorial Hospital dated 13 May 1998 shows the applicant was treated for a syncopal episode.

8. The FSM's NCOER for the period ending November 1998 notes that he was on 6 months excused absences due to his undergoing a series of (medical) tests.

9. A Consultation Note from the University of Tennessee Memorial Hospital dated 3 October 1999 shows the applicant had a past history of emphysema, diabetes mellitus, hypertension, cardiomyopathy (probably alcoholic), and hyperlipidemia. It also indicates that he had no history of alcohol since 1987.

10. The FSM's NCOER for the period ending November 1999 notes that he was going through treatments for his illness.

11. The FSM apparently was discharged from the ARNG on 12 February 2001 upon his expiration term of service. If a Report of Separation, NGB Form 22, was prepared it is not available. He died on 13 September 2001 at age 52. His ARNG Retirement Points History Statement shows that he had completed 18 years, 11 months, and 23 days of creditable service for retired pay as of retirement year ending date 12 February 1998.

12. The Tennessee ARNG State Surgeon opined on 12 December 2001 that the FSM should have been sent for a medical review board as early as 1998 when it was documented that he had cardiomyopathy (hypokinetic heart), diabetes mellitus, hypertension, chronic obstructive pulmonary disease, hyperlipidemia, and coronary artery disease. The State Surgeon further opined that it appeared the FSM was secreted from medical scrutiny by not receiving a scheduled quadrennial retention physical in February 1996 and in February 2001.

13. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB). The litigation attorney for the NGB opined that had the FSM received a quadrennial retention physical in 1996 or 2001, he would have been referred to a medical review board and most likely been recommended for a medical discharge. In accordance with Title 10, U. S. Code, section 12731b, he could have been medically discharged with eligibility to apply for reserve retired pay at age 60. That office further opined that whether he then would have participated in the SBP is speculative but that office presumed he would have.

14. A copy of the advisory opinion was provided to the applicant. She concurred in the advisory opinion.

15. 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.

16. 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 3-21 states that several heart-related conditions, including at least one with which the FSM was diagnosed, are causes for referral to an MEB.

17. 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).

18. Public Law 95-397, the 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. It appears that both the FSM and the Government erred in not ensuring that the FSM kept his periodic medical examinations up-to-date. The Government's error was more egregious. His unit was aware since at least his November 1997 NCOER that he had serious health problems which appear to have prevented him from fully participating in his assignment after February 1998.

2. The FSM had several serious illnesses. His State Surgeon opined that those conditions should have triggered his referral to a medical review board. It would be equitable to show that the FSM was referred to a medical review board and subsequently 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. Considering the seriousness of his illnesses, it is presumed that he would then have elected to participate in the RCSBP.

3. 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.

4. In view of the foregoing, the FSM’s records should be corrected as recommended below.

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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 cardiomyopathy and chronic obstructive pulmonary disease on 1 June 1998;

b. showing that the FSM elected transfer to the Retired Reserve as a result of being medically unfit for retention, to be effective 1 July 1998, 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 13 September 2001, the date of the FSM’s death, as a result of the above corrections.

3. That in the event the FSM's NGB Form 22 (that should have been issued upon his separation due to expiration term of service) is located, it be declared null and void in light of the above corrections.

BOARD VOTE:

__JNS__ __DPH___ __WDP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___ John N. Slone _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069796
SUFFIX
RECON
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.03
2.	137.02
3.
4.
5.
6.